International Law, Power, Security and Justice: Essays on International Law and Relations 9781472565235, 9781841139821

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Series Editor’s Preface

This Series aims to contribute to the dissemination in English of the works of the most eminent international law scholars writing in French. Because these works have not yet been published in English, this scholarship is inaccessible to a great number of potential readers who, due to the language barrier, cannot become acquainted with or discuss it. This is highly regrettable, as it limits the debate on international law to works in English—the lingua franca of our contemporary world—and thus primarily to Anglophone scholars. The publication of these works in English therefore seeks to create the conditions for genuine debate among Francophone and Anglophone international law scholars across the globe, a debate that should ideally be based on the work of both. Learning of the others’ theories through translation is in fact the first essential step towards acknowledging the contributions and differences of each. Knowledge and acknowledgement lead to understanding the core of irreducibility, as well as truth, in each legal culture’s international law doctrine, its traditions and distinct ideas, as well as each author’s way of thinking. They should make it possible to avoid the all-toofrequent misunderstanding of each other’s position on international law that results from simple ignorance of each other’s work. Between the Francophone and Anglophone worlds, the rule is still too often mutual, even courteous indifference or ignorance, dialogue the exception. Emmanuelle Jouannet Professor, University of Paris I (Sorbonne Law School) )

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Foreword

The essays in this book address the relationship among the age-old competitors for the soul of the international order—law, power, security and justice. It is fitting that the twisted web of their influence be untangled by the Director of the Centre Thucydide: it was of course Thucydides, first and most famously, who took on these vexing issues in his History of the Peloponnesian Wars. Most pertinent therein is perhaps the Melian dialogue, which is familiar to every student of international relations (but not, alas, to every law student, which reflects law’s shortcomings in addressing problems that are well-known to specialists in international relations). The dialogue recorded or, more accurately, attempted to reconstruct the negotiations between the hapless Melians and generals of the Athenian forces that had laid siege to their city. In so doing it raised questions that have subsequently troubled readers for twenty-five centuries. In it, the Athenians are willing to talk only about interests, not about right. They undertake to convince the Melians that the two sides are possessed of a common interest—namely, that the Melians should surrender. The Athenian view is not, as commonly assumed, that might is right, far less that might should constitute right; a metaphysical discussion of abstract right and wrong is in fact of no interest to the generals, and they give short shrift to the Melian effort to inject their gods’ values into the negotiations. Rather, the Athenian point is simply that each side should behave rationally, avoiding ‘specious pretences’ and the supposed commands of any pertinent gods (the gods representing a stand-in for contemporary notions of law and justice). Rationality, the generals suggest, is a function of power. ‘You and everybody else,’ they tell the Melians, ‘having the same power as we have, would do the same as we do.’ From this, generations of realists have identified Thucydides as the intellectual godfather of the seminal descriptive proposition that states are rational actors and act only to advance their own interests. It is accurate to take the Melian dialog as descriptive rather than prescriptive. Critics of realism often assume the contrary, believing that Thucydides argues implicitly that morality is a function of power. But Thucydides injects no opinion with respect to the moral dimension of what he describes. Had he done so the likelihood is that he would have been aghast at what transpired, judging at least from other parts of the History

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in which he expresses views that are unequivocally humanitarian, such as his commentary concerning the Civil War in Corcyra in 427. ‘Love of power,’ he there opined, was the cause of ‘all the evils’ that the Greek city states encountered. That ‘the strong do what they can, and the weak suffer what they must’ is simply an observation about the way the world works, not a normative statement about the way it should work. Perhaps, however, Thucydides does implicitly espouse in the Melian dialogue the view that states are rational actors. But what would that mean? Did the Melians act rationally? At first blush it would seem that their choice was disastrously irrational, given after all that as a consequence of their choice, all the Melian men were slaughtered and their women and children condemned to slavery. Yet the truth is that it is impossible to know whether the Melians acted rationally because it is impossible to know what interest they sought to advance: if the interest were survival, of course they were indeed irrational, but if their objective was to vindicate values of honour, courage or devotion to principle, then perhaps martyrdom was altogether rational. Rationality assesses only whether means match ends. It does not prescribe ends; it does not tell us what we should ‘want to want’, in Holmes’s phrase. Because we can seldom get into the heads of decisionmakers and identify all the values and interests, conscious and unconscious, that they seek to vindicate with a given action or policy, it is impossible to know whether a given act or policy is rational. To put it differently and to extend the point, the proposition that states act rationally to advance their interests is not falsifiable, because it is normally not feasible to produce a counterexample that demonstrates what a state might do or did in fact do that was at odds with its interests, fully understood. If obstacles to analysing the effects of rationality in international relations and law are thus considerable, efforts to analyse the effect of power are even more daunting. Power—the ability of a state to get what it wants, relative to the ability of other states to get what they want—is not quantifiable. There exists no scale in the sky to measure how many pounds the most muscular nation can bench-press. Sometimes power within one realm translates into power within another; as Paul Kennedy demonstrated in The Rise and Fall of Great Powers (1987), military power depends heavily upon economic power. Yet a nation can be powerful in one realm, as Japan and Switzerland are economically, but weak in other ways—as those countries are militarily. Power calculations furthermore fall within the shadow of the future. The Melians tried without success to make the case to the Athenian generals that a nation can fritter away its power by short-sightedly establishing a precedent that can later be used against it (as the United States is accused of having done through the profligate use of armed force over recent decades). But the weight of negative precedent is always speculative when no court sits to apply it. Hence it is fruitlessly debated whether the United States as a world power is today in a state of decline. Compare the arguments of Joseph Joffe (‘The

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Default Power’ (2009) Foreign Affairs) with that of Leslie Gelb in Power Rules (2009). Each makes a persuasive case. Gelb argues that it is; Joffe argues that it is not. But each relies on different indicia of power, and because there exists no agreed-upon formula that specifies which indicium controls, the two ships pass in the night. The difficulty is compounded when we remind ourselves that power is relative—that the same assessments must be made not only concerning the state in question but with respect to potential power competitors as well. Power nonetheless is widely believed to distort perceptions of justice. Justice, about which the Athenian generals seemed so oblivious, generates unwavering certitude in others—but varies dramatically in its commands from culture to culture. Hence humanity has sought to reduce its core dictates to universal principles of law. Yet under the gravitational pull of power, international law, for all its supposed uniformity, repeatedly surprises, rather in the manner that a visitor strolling about Paris is sometimes struck by the haphazardness of its street plan. Narrow, serpentine streets form a maze of lanes and back alleys hiding quaint old patisseries, bistros and boulangeries behind its broad avenues and grand boulevards. These little surprises, one learns, are the result of the superimposition of a later template over an earlier one, as the street plan that emerged spontaneously over a period of eight hundred years was overlaid with a supposedly more logical matrix drawn up during mid-nineteenth-century urban renovations. A visitor’s first walk through international law brings similar surprises. Centuries of rules derived from natural law have been overlaid by an incomplete positivist template forged by competing centres of power, with the result that one is repeatedly surprised to stumble upon juridical vestiges of earlier times when one expects to make one’s way along rational, newly-built legalist thoroughfares. Poking through the modern framework of international rules made from common consent and agreement are medieval rules that supposedly derive from eternal principles of good and evil. Security, demanding as it is of predictability, cannot realistically rest wholly upon such a framework. In the essays that follow, Serge Sur navigates the thoroughfares and byways of international law as confidently as he does those of his native Paris. He writes with a breadth of perspective but also with precision, with erudition but also with accessibility. He brings to international law the insights of a realist, but a realist who knows that power alone cannot provide solutions to humanity’s twenty-first-century problems. International law must be more than a fashion; it must be taken seriously, he argues, if for no other reason than that it affects governmental decision-making. These essays take international law seriously. Let us hope that governmental decision-makers take them seriously. Michael J Glennon Professor of International Law Fletcher School of Law and Diplomacy, Tufts University April 2010

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Acknowledgements

The author wishes to express his gratitude to Professor Emmanuelle Jouannet, who is at the very basis of the French Studies in International Law, and who has made this book possible. His gratitude extends to Professor Michael Glennon for his Foreword, and to the translators who worked on the project: M Louis Aucoin, Ms Elizabeth Carey, M Ethan Corbin, Ms Lucie Maupin, Suzan Murphy, Naomi Norberg. He would also like to express his thanks to Ms Lisa Gourd for the extensive editing process she performed so efficiently.

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1 Power as a Regulator of International Relations*

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HOUGH OFTEN INVOKED, power is rarely analysed anymore. That interstate relations are dominated by power is a trivial idea. Formulas such as ‘it is all simply a question of power politics’ are known all too well. Still, though a simplistic formula, it nevertheless assimilates two different notions: power and the use of force, or even the use of force and violence. Either way, such a construction always seems to lead more or less to the justification of one or the other, or even both. Furthermore, even if it is taken as a given that interstate relations are dominated by power, how can one pretend that power is regulatory when, as a product of anarchy, the absence of a pre-established order, it seems to lead to overall disorder? On this point the question of the regulatory role of power is besieged by a panoply of critics with different motivations. Criticism of power comes on either a moral or a political level first. Its role is rejected with moral disgust, stemming from a kind of ethic purity that eschews justifications for policies of force and condemns their abhorrent nature. Further, as is often the case in countries whose power is in decline or that find themselves in a position of relative weakness, there will be reluctance to justify a notion that by definition risks their own wellbeing. As such, the preference is for international relations to be dominated by rationality, which can be assimilated with a debate of ideas searching, in all instances, for solutions conforming to an abstract interest held by the international society as a whole. Out of such collective debate and the confrontation of such a gamut of interests would come a rallying cry in the name of a common interest among states. Such idealism, by definition, would prove illusory in each instance, nothing more than extreme points of view when confronted with a measure of objectivity. While it is possible to disapprove of the power game and in some cases to deplore its effects, this should not lead to an attempt to deny its concrete influence. Two objections can be presented to the varying positions that are critical of power. The first, theoretical in scope, argues against using power as a * Previously published as ‘La régulation des relations interétatiques par la puissance’ in S Sur, Relations internationales, Domat—Politique, 4th edn (Paris, Montchrestien, 2006) 237–61.

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defining characteristic. This notion itself is impossible to grasp with precision. In the end, one can only invoke it a posteriori, according to what it produces, as a justification of events or configurations that have ill-defined or fluctuating compositions, which makes them, in turn, impossible to forecast. When referring to a group of complex data, any attempts to baptise it under a sort of conceptual umbrella would be just as futile. The fall of Nazi Germany, the collapse of the USSR, or the relative decline of Western Europe, emanating from different types of phenomena, could all be artificially connected to failures or evolutions of power. Similar to the soporific quality of opium, a catch-all term would disguise the real emptiness of such a definition. Moreover, it would be inaccurate to say either that the only motive or even the dominating aim of states is the indefinite growth of their power—which would indicate a quasi-mechanical functioning of states—or that such a phenomenon would be the subjective drive to their international behaviour. Many other considerations would intervene and complicate such an attempt at bringing the notion back to a single source or catch-all conceptual framework. The second objection calls into question power’s regulatory dimension. If power truly dominates, it would be deregulatory. Its use lies on a state of nature that is arbitrary and anarchic, beyond all rational structure, leading to an indefinite succession of unforeseeable and mobile configurations. Far from being a by-product of it, all regulation would entail a reduction of power’s role and thus would develop by the way in which it limits rather than expands power. It is true that power is a complex notion that is full of contradictions. Still, the above objections are not all that must be considered. It is the lack of power that is disorganising, while power in itself is cohesive and organising. On the condition that one specifies the sense in which it is used, the concept provides an essential descriptive factor—descriptive and not illustrative, since there can never be a complete explanation. It certainly does not explain, as it is rather power that must be explained; but it clarifies by regrouping converging aspects under one homogeneous term and dynamic (as discussed in section I below). It is beneficial in this respect to state its principal characters clearly (section II) before showing in any way expressions of power that are translated by the way states manage it (section III).

I. Definition We can understand the term power in multiple ways, abstract or technical. A dictionary definition, for example, may devote three pages to the term, but it will be more a series of particular illustrations than a general definition. One learns thus that it is a word used in philosophy, mathematics, mineralogy and even various games. The more general sense is provided by definition number 1: ‘the right or act by which one commands others,

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authority’ and definition number 10: ‘the power to do something’. It is beneficial here to adhere to a definition that fulfils the needs of the exercise. It must be sufficiently large to cover the range of different behaviours encountered in international relations. It must cover the whole of the answers to the simple question: who can do what? It must also be precise enough to be distinguished from the neighbouring notions with which power is often unduly confused.

A. Components In this essay, power is defined as a capacity—capacity to do; capacity to make someone do; capacity to prevent someone from doing; capacity to refuse to do. These different terms merit a degree of explanation, as does the chosen arrangement of the terms themselves. i. Analysis a. Capacity Capacity refers to an aptitude or a potential for action that is translated by concrete manifestations but unexhausted by any of them, retaining the same potential even after being employed. For example, legislative power defines the possibility for a legislator to adopt successive laws and to endow them with a determined authority. Each of these laws contains the capacity to be so endowed, but this capacity does not identify with any of these laws in particular; moreover a capacity of external intervention supposes the ability to project power, but it could also be destroyed during such an attempt at power projection. Concretely, this capacity contains varying degrees of differentiation and can progressively be affected by its use, such that the capacity to renew power or to resist being worn down—something essential to all material activity—is an element of power. b. Capacity to Do The capacity to do designates the possibility to act by oneself and to master all elements of one’s actions. A state is hence supposed to be able to maintain public order within its territory by its own means and freely impose its own legislation. c. Capacity to Make Someone Do The capacity to make someone do (compellence) implies that one acts through others; for example, in a given situation one might use the action of another state for one’s own profit. The United Kingdom during its imperial era, attached as it was to a principle of economisation of means, often looked to promote its interests through the assistance of willing partners. In the Crimean War (1855–56), for example, it was often joked that the

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English were ready to fight until the last Frenchman fell (or also ‘The French provide the bodies, the English the matériel’), which alludes to the fact that, though mainly fought by Napoleon III’s France, this war conformed first and foremost with British Mediterranean interests. Making someone do, or compellence, can therefore be a skilful management of power. However, it can also be a sign of weakness that invokes the dialectic of the master and the slave: the first is dependent on the second to achieve his aims. Thus the UN Security Council, which does not possess its own means of action, remains dependent on the assistance of states, which limits its power considerably. d. Capacity to Prevent Someone from Doing The capacity to prevent someone from doing refers to a negative ability— in other words, deterrence. Nuclear deterrence, which forbids other states from certain behaviours with respect to those in possession of nuclear weapons, is a contemporary example; the ‘veto right’ given to the permanent members of the Security Council is yet another. Deterrence does not allow, contrary to the previous capacities, the ability to reach a positive result but rather only impedes the capacity of others to act. e. Capacity to Refuse to Do As for the capacity to refuse to do, it allows for the resistance to pressures and to retain a latent or passive power: not to intervene in a conflict, not to be a party to a treaty or to refuse to recognise a given situation—for example, Western countries did not recognise the 1940 annexation of the Baltic republics by the USSR. ii. Arrangement a. Range and Gradation of Capacities If we regroup the different capacities listed above, we can observe first that they are not mutually exclusive but instead define a range of means that can be used according to circumstances. One can also bring them together two by two; to do and to compel are positive capacities, while deterrence and refusal are negative aptitudes. On another level, to do and refuse to do are opposed on one side, and to compel and to deter the other. The first couple of options imply self-control, the freedom to determine one’s own behaviour. The second supposes a capacity of action for another, that one incites to act or on the contrary that prevents one from doing. b. Gradation between the Diverse Aptitudes The capacity to do, since it does not entail any degree of dependence on others, is the highest option in the exercise of power. Then, to make someone do is the point at which the participation of others is indispensable (or

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perceived as such). Take for example, the USSR’s 1956 unilateral intervention into Hungary to suppress an insurrection against the local communist regime. In contrast, in 1968 it deemed the participation of other countries in the Warsaw Pact indispensable to intervene in Czechoslovakia—though due more to diplomatic than military reasons. Or also, unable to face the United States directly, it pushed other countries to conflict, as in the case of North Korea in 1950. As for the United States, in 2003, they thought they could handle the Iraqi affair alone, but what followed demonstrated the contrary. To prevent someone from doing is a lesser power and usually exerted only when there is no other option. Deterrence does not allow one to win a war outright but rather only to avoid it. In 1980, for example, although Western pressure prevented a Soviet military intervention in Poland, it subsequently could not counter the political intervention carried out by the Jaruzelski regime. While the capacity to prevent someone from doing is a lesser power, it is hardly negligible, as attested by nuclear deterrence or the role of the veto in the UN Security Council. To refuse to do constitutes the lowest rung on the hierarchy of power. It is sometimes merely symbolic, as in the refusal of recognition, but not necessarily. For example, the USSR in 1990–91 was no longer able to sustain its veto position, which would have paralysed the action of the Security Council in the face of the occupation and the annexation of Kuwait by Iraq. It no longer had capacity to prevent someone from doing. It could, however, refuse military participation and abstain from the action of the coalition. One can ask oneself if a country such as France, whose hesitation was visible, could have for its part refused to take part in the conflict, particularly due to its concern to protect and demonstrate its responsibility as a permanent Security Council member. In 2003, however, it was unable to prevent unilateral intervention against Iraq but was able to refuse to participate in it. iii. Objects and Orientation of Power This four-part classification is not the only hierarchy that one can suggest for forms of power. Another rests for example on the objects to which power is applied. In this regard power over things, power over minds and power over values can be distinguished. The power over things refers to material capacities, on the concrete availability of means of physical action or the faculty of producing them. It is the most visible element of power and tends to near itself to force. It implies the material means to carry out, the realisation of, the prevention of or the refusal to carry out certain actions. The power over minds supposes knowledge, understanding and discovery, but it also includes influence, persuasion and conversion—for example, the power to realise a technological breakthrough, to propose an organising

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project, to present a conception of international order or even to identify an enemy and solidifying opinion against it. Such power is of an intellectual order and does not necessarily rest on material means. It is difficult to say which of the two forms represents the higher degree; they are often linked and complement one another. The power over values implies an ideological or even religious order and is more minimal in degree—such normative posturing and reminders regarding norms and moral obligations are often the privilege of small powers. To a certain degree, it serves to compensate for weakness, even to disengage oneself materially, and to attempt to exert maximum influence with a minimum of means. Furthermore it frequently consists of a moral rejection of force and translates into action only indirectly. Religious convictions can nevertheless be used to justify violence, as shown by September 11th. The two first forms of power suppose a hierarchy benefiting those able to exert them, while the last, power over values, appears to be common ground for all. The latter is the degré zéro of politics, relying on the ethical distinction of Max Weber, ie, that of conviction and not responsibility. The power over values can nonetheless give way to manipulation and political use, when states or even groups claim these values to exert pressures on others or to attempt to make one feel guilty—and the extraction of culpability is always a psychological sign of power in action or of an efficient power (as in the case of NGOs that conduct humanitarian or human rights campaigns against certain states). One has to avoid confusing these subjects and these degrees of power with a form often mentioned and used: the capacity to harm. The capacity to harm is not in fact a degree or a form of power but an orientation of power; harm is the objective that power pursues, the end that it proposes for itself. In all cases, manifestations of power can be used to bring advantages to others, or conversely to harm them. One can for example provoke an arms race that another state will be unable to follow—in other words, exert the capacity to do; but this may also oblige the other state to enter into a competition that will be unfavourable to it—thereby exerting the capacity to make someone do; one can be opposed to a states’ admission to an international organisation—thereby exerting the capacity to prevent someone from doing; one could also take restrictive trade measures against the other state—exerting the capacity to refuse to do.

B. Distinctions Though understood in a synthetic and abstract manner, one has to distinguish power from the notions that are associated with it: authority, decision, force, violence. There is a close relationship between power and those notions, which in certain regards are its components and instruments, but they cannot be said to be the same thing as power. Concerning the distinc-

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tion, conventional terminology will remain the foundation, since terms are sometimes used interchangeably. In the general sense that they will be used here, they will cover different matters. i. Power, Authority, Decision Power in political or constitutional theory—ie, state and domestic law— refers to a clear and distinct notion, containing four elements: a determined function, pre-established jurisdiction, instituted organs and particular authority. The legislative, executive and judiciary branches are the most apparent examples, to which one could add that of constituent authority. The care with which these branches are differentiated, organised and defined is not simply a matter of rational order. It corresponds to a will not only to organise but also to limit authority, in confining each organ to particular jurisdictions, so that the notion itself of authority requires the separation of authorities. The distinction between central and local authorities is likewise designed with the same logic of separation and therefore limitation. Thus defined and outlined by judicial rules, power is held within precise limits that tend to confine it. Fragmentation, separation and, in reality, limitation of power are factual realities of power. Power nonetheless tends to remain unified and to elude all rigid attachments of this type. To simplify, one can say that authority is power policed and channelled by law but at the same time restricted by it, as power is always kept somewhat unorganised and spontaneous, which is its autonomous dynamic. As for decision, it designates a singular action taken by a competent organ that is endowed with a determined authority (thus the ratification of a treaty, the breaking of diplomatic relations, the granting of a credit, etc). Power necessarily expresses itself by a set of decisions that materialise it, without identifying itself to any of those decisions. Decision is power in action. This points to the difference between a capacity and its timely exercise. Power is more diffuse and objective than a decision, which can always be brought back to a known author, a limited objective and a given authority. When President Nixon decided on 15 August 1971 to suspend the convertibility of the US dollar to gold, he took a measure expressing the power of the United States without exhausting it. Power contains a range of potential options, while a decision is the choice and the implementation of only one of these. ii. Power and Force Force, in the sense retained here, defines a specific and concrete set of means of coercion: police forces, armed forces, etc. It encompasses the human and material means that are organised with the aim of exerting permanent pressure. It can be either active or passive—active by the way in which it is used, passive simply by the fact that its existence confers upon

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it a dissuasive character, showing one’s force so as not to have to use it. Force is an element and an instrument of power but should not be confused with it. For those with the means of force, it can be as much a burden as an advantage. Force has to be set up, looked after and maintained in working order. The cost can be high and in the end represent, despite appearances, real weakening by an inappropriate use of power. The excessive weight of expenditures and the military apparatus in the USSR, for example, contributed to economic paralysis. Force has to be adapted to its object and in proportion to the power it seeks to serve. Defining this level of appropriateness comes from the handling of power and is not easy. More broadly, the need for a coercive apparatus of force generates doubt about the reality of power, a doubt that the presence of the force seeks in turn to erase. As such, force is in a way a failure of power. An efficient power acts invisibly; it is a sort of latent engine. The fact that British police officers are not armed demonstrates more credible public authority than if officers were to display imposing weapons. To use a more general example, in states with dictatorial regimes, power and force tend to be permanently conspicuous, while in liberal countries institutions ensure that they remain distinct. Hence the flamboyant appearance of dictators and their taste for the politics of force, internationally as much as domestically—yet their weaknesses are real. Liberal countries often present on the other hand a soft appearance, with slower and graduated reactions, but experience has shown that they are in practice much more solid. Saint Just wrote, ‘The citizen is first in relation with his conscience; if he forgets his conscience, he is in contact with the Law; if he forgets the Law, he is citizen no more; there begins his relation with power.’ Thus force means there has been an initial failure of power, which force seeks to rectify by showing itself to exist. To express it in a more philosophical Latin formula, which the kings of France inscribed on their cannons, force is the ultima ratio regum—a king’s last resort. iii. Power and Violence The end result of using force (ie, violence) consists of the acts of constraint that affect, and even lead to the destruction of goods, institutions or people. Violence thus has multiple forms, with regard to its scope, methods, and instruments. A whole spectrum exists between an individual terrorist attack and a generalised war, including riots, civil wars and what is known as lowintensity conflicts (LIC). In principle, violence exists as a paroxysm of power, its concrete manifestation. Power lives on credit, violence on cash— an extension of Clausewitz’s formula of war as a continuation of politics by other means. Another way of looking at it is that power implies distance, while violence supposes contact between adversaries.

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To a large extent, however, violence is a failure of power and at the very least a considerable risk for those with power. Violence implies that the power behind it is being challenged and must affirm itself to overcome the challenge. In taking the extreme step of engaging in violence, those in power run the risk of further weakening and possibly destroying their own power. Engaging in war is therefore always a venture into the unknown. Only exceptionally is it the most economically sensible course of action, in the broad sense of the term, and rarely is it the most certain way to attain one’s objectives. Just as force is a failure of power, violence is a failure of force. In all occurrences of violence, there is at least one loser, whose level of power suffers a setback vis-à-vis the risk incurred. Even for the victor, an increase in consistent or durable power is not assured in the end, at least relatively speaking. In this regard, the balance sheet of history shows that war tends to bring about failure rather than success—not just in moral terms. At the very least, the relationship is ambiguous. Violence can be necessary and inscribes itself in a range of options as a readily available choice, but its exercise can in all cases lead to a weakening of the one who uses it, regardless if he was on the offensive or defensive.

II. Characteristics Having outlined the notion of power and distinguished it from its neighbouring notions, this section returns to its proper characteristics. The principal ones that will be discussed here, classified without any sense of hierarchy, are united around the theme of power’s spontaneous development, ie, the idea that power is autonomous, dynamic and unorganised.

A. Autonomy Power is firstly defined by itself and cannot be subject to external regulation. i. Intangibility As a capacity (see above), power cannot be tied to any material element or objective with which it could be mistaken and which would therefore limit it. This has already been observed in the case of force. In a more general context, power cannot be amalgamated with a particular object over which the mastery would be itself a gauge of power: for instance, armed force and especially certain types of armaments, diverse types of economic capacities, industrial production, exports, natural resources or even demographic and territorial characteristics (a large population, a high rate of fertility, a vast territory, a particular geopolitical situation, etc). Nonetheless, it is clear that power is not an empty capacity: it must be supported by means and instruments, which often includes the things listed above. But these objects and

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facts are components of power; they are not in and of themselves power. It is not only the existence of such instruments but also their combination and, most importantly, the way in which they are put to use that must be considered. If in a given moment or in a given historic configuration a particular combination of factors can contribute to the positive growth of power, it is still only a temporary situation—such as the possession of coal or iron ore reserves during the Industrial Revolution. If one examines state power today, the convergence of diverse elements is clear: nuclear weaponry; the ability to deploy armed forces; achievements in the outer space race; territorial importance (in quantitative or geopolitical terms); social equilibrium and internal political stability; economic development (particularly industry); levels of technological research and development; high levels of exportation; ideological or cultural influence, etc. In other words, real state power appears to require a combination of hard power (material means) and soft power (political, cultural and technological influence). In contrast, natural resource reserves and even the size of populations, at least in terms of density, do not appear to figure. But the same calculation a century, even a half-century ago, would have put the accent at least partially on different instruments. Thus, power is not defined by any element that is substantially linked to it. It tends to be detached from instruments with which it is only provisionally associated so as to support itself with other, better adapted ones. In turn, they can at a given time coincide with it, even though they do not naturally belong to it. ii. Self-Regulation Firstly, any opposition to power that does not itself rest on an adequate basis of power is bound to fail. Take, for example, the division of Germany, which became the key to the political and strategic stability of Europe and was furthermore guaranteed and protected by a collection of legal texts, such as the Basic Treaty of 1972. Such legal barriers ultimately did not withstand the underlining movement towards reunification that was the rise in power of the Federal Republic of Germany, the decline of the USSR and the aspirations of the populations. It was much the same during the era of decolonisation: by itself a legal regime cannot resist the evolution of power. Therefore, only an equivalent power can stop power—equivalent, but not necessarily identical, since different forms of power can reach balance each other. At the international level, the distribution of power between states can result in just such equilibrium. For some political theorists, the dynamics of such attempts at equilibrium are much more important than legal regulation and at the very least conditions efficiency. Montesquieu’s famous maxim alludes to this point, though it is sometimes interpreted incorrectly: it must be, by the nature of things, power that stops power. In the sense understood here, this formula refers to power (by the force of things): it

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does not necessarily or exclusively imply the separation of powers in the legal sense of the term, but a certain distribution of power in the midst of the body politic. For example, the expansion of some American cultural models has been irresistible, not only in Western countries but also in states ideologically opposed to them, in spite of efforts by those states to close their borders. The international supremacy of the US dollar eventually broke through the restraints of Bretton Woods Accord. Though Bretton Woods recognised the power of the US dollar, it tended to channel it. Conversely, the decline or fading of power condemns seemingly stable institutions or systems, as illustrated by the disappearance of the socialist camp and the USSR. In the same spirit, the purely voluntary normative attempts supporting the construction of institutions solely on the basis of law and reason are bound to fail. The League of Nations was, in many regards, a remarkable intellectual model. It was lacking only one power, or a competition among powers in order for it to prosper. More recently, a multilateral treaty such as the Montego Bay Convention on the Law of the Sea was an impressive achievement in terms of international law, as much for the efforts deployed as the result reached. The hesitation by great sea powers with regards to the treaty has been enough to make its modification necessary even before its entry into force.

B. A Dynamic Nature The dynamic nature of power manifests in many often complementary ways: as calculated modifications to increase profitability; as spontaneous development; as a tendency toward degeneration and decline. i. Modification As experience has demonstrated, the constitutive elements of power change and evolve with historical developments. Territorial control has long been durable as a form of domination: hence imperialism and the vast colonial territories of the past. However, this is no longer the case, as demonstrated by the spectacular break-up of the USSR. The accent today is mostly put on capacities for exchange, commerce, communication, technologies and culture, just as it was during the eighteenth century. The mobile and invisible prevail on the static and material. In the same way, military factors played an essential role between 1870 and 1990 but are currently in relative decline. Over a long enough period of time, we can therefore observe a tendency towards the dematerialisation of power to its abstraction. It is in no way useful to have abundant natural resources if one cannot exploit them; these days the development of computers and digital capacities is probably more important than a large number of armed forces.

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It is therefore important to be wary of the fetishism of power, which reduces power to quantifiable objects imbued with a sort of magical value: precious metals for Spain; colonial empires for other European powers; ideology and armed forces for the USSR; today it may be nuclear weapons. However, the evolution is not linear, and forms that are archaic today can regain importance tomorrow. The imperial idea, for example, did not die with the Roman Empire but has had periodic re-awakenings. Today, it is true that the commercial sector prevails over that of the military, the private sector over the public, the control of transactions over that of territories. The essential criterion is doubtless that of power’s profitability. Forms that are too costly, imposing burdens too great when compared to their benefits, are bound to disappear. Hegemony, in the non-territorial sense of domination, is in the present circumstances better adapted than imperialism, which marks the difference between earlier British supremacy and American supremacy today. Profitability per se should not, however, be understood in exclusively financial or economic terms, ie, through an accountant’s eyes. Other factors must be considered, such as the role that a state intends to play internationally, the influence that it wishes to conserve—in short, the political elements or, more broadly, the non-monetary ones. Such is the reason behind French sovereignty over overseas territories; it is an attempt to maintain a universal presence as well as a component of national identity. ii. Development In the sense that it is undercut only by itself, power, in the diverse forms that it assumes, tends to lead to extremes until it is stopped by an equivalent power. An equivalent power is not necessarily similar, and the competition that develops occurs as much between different forms of power as identical forms. There are many examples of such competition between similar powers at the international level. The development of colonial empires was considerably accelerated by European power rivalry, especially between France and Britain. UK naval domination was first subjected to the rivalry of Spain, France and Germany, though these challenges led the United Kingdom to further develop its supremacy in order to withstand the combined power of the next two navies. More generally, one can look at arms races, which tend to be self-fulfilling. The arms race between the United States and the Soviet Union took on considerable proportions during the Cold War. This type of competition tends to focus attention by devoting an increasing amount of resources on specifically chosen areas while minimising the attention paid to others. The second type of development, wherein different forms of power compete often sees rivalries between countries or groups of countries. The forms of power themselves, however, also expand and mutate as a result,

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with one manifestation overcoming the others because it is better adapted, more efficient or more profitable. Thus the United States and other liberal countries have occupied and controlled the field of economic exchange, while the USSR and the socialist camp put more of an accent on an ideological, political and strategic vision of international relations. These opposing concepts ensured a division of power between the two poles until the decline of the latter camp led to its eclipse by the former. Currently it is terrorism that represents an asymmetric challenge to the military and political power of the United States. Global development feeds off of competition. It produces and leads to the decline of powers, underscoring yet another aspect of the dynamics of power. iii. Deterioration The course of development that leads to dominance generally ends in the decline of the constitutive elements of power, as if the famous principle of the deterioration of energy applies. One could advance that the unique concern of power, like other usable forms of energy, is to destroy itself. To quote J-B Duroselle, ‘Every empire will perish.’ Power by itself cannot be status quo, as it must be constantly renewed. That which has been an asset can become a burden, a straightjacket, an instrument of decline: so it is with monetary wealth without useful purpose, aging colonial empires, anachronistic ideologies, waning military force. This moribund character corresponds to the archaism of the instruments, inherently deriving from either internal or external contradictions of power. External contradictions exist when competition leads to the mutual exhaustion of rival countries: the two World Wars brought the destruction, division and the long-term decline of Europe; insomuch as they remained rivals, the colonial powers mostly contributed to their mutual decline; the arms race between the United States and the Soviet Union weighed heavily on the two competitors yet benefited countries such as West Germany and Japan as they did not have to assume the burden. Therefore at the same time that it accelerates the development of given forms, competition prepares and precipitates decline by the same excess by which it is brought. Its profitability tends to lead to decline, and the status of what was a benefit is inverted and transformed into burden. Internal contradictions are usually due to the incoherence of mechanisms or principles. To give one example, the foreign policy of Napoleon III was an attempt to promote both the French Empire and the principle of nationalities, which could not go together. Italian unity and German unity destroyed in practice the basis for French dominance in Europe. By the time that the Empire was challenged in France, nationalism had become an exportable commodity via colonisation, pairing the ideology of human rights and the practices of colonisation at the same time.

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It is without a doubt the nature of politics to accept and control contradictions, but it can become an insurmountable task. Such is the case when internal and external contradictions coalesce. Decolonisation is the product of the World Wars on the one hand and, on the other hand, the incoherence between the principles of political liberty in the imperial home countries and colonial subjugation of others throughout the empires. The Third Republic of France embodied this contradiction and was able to master it, but it proved to be deadly for the Fourth. This raises the question of power management, insofar as power, by its very nature, is disorganised.

C. Disorganisation It is because power is dynamic that is it disorganised, and that dynamism leads to an auto-regulation of power. A spontaneous and elusive grouping of factors, power resists all definitive or pre-established attempts at channelling it, even if it cedes for a time within certain legal parameters that it produces itself and which seem to make it sustainable. Power comes fundamentally from the nature of its reality and not from law. We have shown the way in which it is necessary to distinguish power and ability, precisely on this basis. Power and ability must be opposed to one another, at least concerning the organisational modalities of authority that they respectively imply. In another respect, we can understand the opposition between the domestic level on the one hand and the international or interstate level on the other hand. The domestic level depends on a logic of differentiation and separation of powers emanating from an unique source, and thus on a logic of attribution or division, operated by a central entity and in principle controlled by it. The international or interstate level relies on market-based logic, which is the market of power. It is pointless to search in interstate conventions or international law for a system that is equivalent to the separation of powers within states themselves. Georges Scelle tried to establish, through doctrinal analysis, such a functional typology. For him, the tri-functional division between the legislative, executive and the judiciary is a necessary component of all regulated society. Such separation cannot be seen on the international level, insofar as there are no institutions that have mandates to fulfil specifically these different functions. The three functions are nonetheless fulfilled for international society—but by states or certain groups of them, acting in a dual functional manner. A peace treaty, the fruit of the combined efforts of hegemonic victors, thus exhibits a legislative character, while the coalition of the victors, as long as it is maintained, assumes certain characteristics of a practicing government (the executive). Certain forms of conflict in which two conceptions of law are in conflict evoke the primitive formula of legal duels, victory being equivalent to the judgment of God. In practice, international dealings rarely manifest themselves in this way. International society shows evidence of a distribution and fragmentation of

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power in such a way that it contains numerous traits that resemble those of a liberal society. But if one wants to find an equivalent to the separation of powers, it is the coexistence of sovereign states. They determine their conduct freely in the frameworks that they have accepted and are in a natural state of competition for power. With minimal adherence to regulation, each state has the right to become as powerful as it is able. As a manner of dividing authority, the logic of fragmentation is even more efficient than that of a separation of powers. As a general principle, international society suffers from a lack of central authority that would enable it to respond to questions of common interest effectively. But the two logics are diametrically opposed to each other: organisational harmony is necessary for the smooth running of domestic societies, while free competition between independent entities allows for power dynamics to be expressed freely amidst interstate society.

III. Power and its Expressions Expressions of power can appear contradictory or, more precisely, contain a dual dimension, so that there are many alternate expressions of power. States are the source of these different means of expression, as they are able to channel power and are ultimately responsible for its management.

A. Different Modes of Power Power is both image and reality at the same time; it can present itself clearly as well as dissimulate; it can be employed in either a predatory or retributive way. i. Image and Reality Power is reality as it synthesises the range of capacities at the disposal of states in the realm of international relations—it is a reality for which everyone must account. At the same time, it is an image or a perception maintained by those either in possession of power or in the face of it. The two are clearly linked. An imaginary or overrated power will not deceive for long, just as a real power will not be long ignored. Yet above all, it is the perception of power that determines partnerships. Who is capable of what? What behaviours can be anticipated or hypothetically must be considered as possible? The answers shape the attitudes of others. It is clear that the inequality of means will be a decisive factor in the actions and the reactions of states, and it therefore underlines the principal difference between image and reality. The first leads to action fuelling concrete behaviours; the second allows for description and evaluation of the achieved results. Image is an active principle; reality is a descriptive principle. When evaluations of power are based on perception, errors in judgment or discrepancies between image and reality are not rare. History provides

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many examples of this: the United Kingdom overestimated French power with regard to Prussia and then Germany; it also underestimated the capacities of Germany in the second half of the nineteenth century and the first half of the twentieth century, which led to the World Wars; France overestimated its military strength in 1870; in 1940 Germany underestimated the capacity and will of the British resistance; the United States did not appreciate the will of North Vietnam to resist during the 1960s; Iraq did not take into account the decline of the USSR when deciding to invade Kuwait in 1990 and anticipated their support in vain; and in general, Western countries, consciously or not, overestimated the capacities of the USSR in its last decades. Situations of conflict aside, one can also mention the initial misreading of the United Kingdom with regard to the will to construct the European Union, as well as the vain attempts of Gaullist France to weaken the international role of the US dollar. These discrepancies between the image of power and its reality are explained firstly by flawed analysis, which called into question the quality of the political and diplomatic personnel in each case. At a more profound level, these misperceptions resulted from the evolutionary character of power, from the permanent modification of its content and its forms. From this point of view there is a delay effect in power, whereby changes are often perceived only in hindsight, ie, after they have materialised. In order to ensure against differentiations between image and reality, it must be admitted that such changes should be anticipated. However, the complexity of international society, the multiplicity of actors and the factors that animate them make this task very difficult. ii. Conspicuousness and Dissimulation Power can be conspicuous. It is shown so that one does not have to use it and that perception of it alone can be sufficient in directing its behaviours. As such, it has a normal dissuasive effect, which can be acted upon. The existence of the veto right in the Security Council often renders its use pointless as it leads to a search for compromise between permanent members. Positively speaking, US adherence to a multilateral treaty allows for its adoption by others. Still, power also often moves incognito. This may be because it is ignored or even ignores itself, due to its evolutionary character. Delays in perception and the mistakes that they beget are found here as well. More frequently, however, such dissimulation is voluntary and deliberate, and there are two possible explanations for it. First and in general, secrecy is often a component of power. Conspicuous decisions and actions that are the result of public deliberation are exposed to permanent regulation and disagreement. Public authorities may be pressured to explain or justify decisions, as well as be subjected to delays, which others can selfishly exploit. Secrecy protects the security and the freedom of deci-

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sion. As such, all power naturally tends to dissimulate its motives or intentions, or only to reveal them partially, even substituting them with more presentable ones. Even in liberal democracies, international action remains more discrete and less subject to public debate than other public policies. Changes in position in this regard are rarely preceded by domestic parliamentary debate. To be sure, the ability to organise and obtain large-scale support for actions—at either the domestic or international level—is also an element of power. Yet such opportunity comes more from rational calculation than from any sort of spontaneous occurrence. Stendhal wrote in Lucien Leuwen that power lies by nature and therefore always lies. Only the types of lies change. Two-bit lies are to sway popular opinion at large; lies worth a dime entrap some enlightened circles; and those worth their weight in salt deceive those in inner circles and in lofty positions. Thus conspicuousness and dissimulation can become one, with propaganda serving to mask reality. The USSR during its heyday, for example, through all and sundry techniques may have pushed the limits of so-called ‘disinformation’, but it never exerted a monopoly in this respect. American and British posturing before the 2003 military intervention in Iraq is another illustration. It has to be specified that state lies do not have to be understood in relation to absolute or abstract truths but rather in relation to facts, to the accuracy of information on the intentions behind actions, projects and means. Furthermore, the principle of the economy of means entails that one does not expose one’s power uselessly. If a state is handling its power efficiently, its power acts without having to be demonstrated and needs to be exerted only in proportion to what it is facing. One should avoid wearing one’s power down prematurely and anticipate forces pushing for either its excessive or ill-suited expenditure. This is how, for example, the USSR, when intervening in Hungary in 1956, in Czechoslovakia in 1968 and even Afghanistan in 1979, harmed its international standing much more than it did with its discrete actions in Poland in 1980. And thus the Chinese repression of student demonstrations in Tiananmen Square in 1989 was the object of widespread international disapproval, not as much in principle but rather due to the fact that overwhelming means were used, in particular the use of tanks. Deploying the civil police force would have aroused less hostile reactions. By contrast, France resisted the Libyan incursion into Chad during the 1980s with sufficient means via Operation Manta. iii. Predation and Retribution Generally speaking, however, the effects of power pose another problem. Are the effects of power always detrimental for those who come under it? Is domination without counteraction the means by which power derives its substance? Does it cause the opposite effects to those faced with it, for example in terms of security and stability? Or are there advantages that

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make for a positive outcome? What distinguishes political domination from something like domination by the mafia? Is humanitarian action the true face of power? We can here recognise the common image of the carrot and the stick. We can also recognise liberal thinking on one hand, and arguments in favour of a tutelary or protecting power on the other hand. More modestly, it can be observed that the regulatory role of power normally outweighs its destructive potential. This alternative between retributive power and predatory power conceals thus at a deeper level the contrast between regulation and deregulation, order and disorder. A predatory power that develops solely for its own profit and at the expense of others is disruptive. On the other hand, a tendency toward stability and the general satisfaction of others is regulating. But then again the problem of the nature of power presents itself, as this is just another manifestation of the thin line between hegemony and leadership. It is true that the spontaneous dynamic of power entails unforeseen changes that can be difficult to control and that are tied to its evolving nature. Therein lies the evolutionary function of power. The recent transformations arising in Europe illustrate this. Generally speaking, a power that sees itself as ascending will attempt to rid itself of constraints, legal or otherwise, that it previously may have accepted in order to bind and control its partners. Power will tend towards the path that gives it the most freedom of action, as the United States did after the fall of the USSR. By doing so, however, it exposes itself to new kinds of challenges. Of course, it is true that the irrational use of power is always possible, notable examples being countries subject to dictatorial regimes, which can be unlawful, have no checks on power and are more prone to domestic and international violence. These regimes frequently destroy themselves through their own excesses. However, if we consider the rational use of power as at least the generally sought objective, if not the norm, it clearly has a fundamentally regulatory character. When subjected to a cost-benefit analysis, it is clear that power seeks self-preservation and to maintain the conditions that fostered its growth. Power therefore establishes institutions and regulations that seek to be permanent in their calling and that tend toward stability—thus the creation of ‘permanent member status’ for the victors of World War II, freedom on the high seas for the great naval powers, the treaties of non-proliferation of nuclear weapons for those states already endowed with them, etc. With such instruments, legal regulation consolidates power just as much as it is founded upon them. This rationalisation is just as clear as that of power being channelled by states.

B. Power Management Though diffuse and spontaneous, power tends to be channelled by states in international relations, and the interaction between the two changes with the

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evolution of the forms and distribution of power. States therefore assume the responsibility of its management and often find themselves implicated in its ebbs and flows. i. The Channelling of Power by States At first glance, the increasing likelihood of states to be weakened by such factors as the autonomy of civil societies casts into doubt the true ability of states to channel power. Though contested and attacked locally, the channelling role of states nonetheless remains. The challenge to this ability to channel power arises from two complementary elements. On one hand, the most traditional and visible form of power—military force or the capacity to resort to violence to ensure domestic and international security—often seems to be in decline in the context of states. In recent decades, the importance of non-state groups or entities has grown dramatically in this regard—liberation movements, insurgents, uncontrolled militias, terrorist networks, etc. They sow trouble and put international peace into question; and states, despite their supposed monopoly on the principle to do so, are not able to react with the efficiency required. More often than not, it is recently independent countries with weak traditions of statehood, no consolidated national roots and no social or political balance that are affected. For example, the increasing circulation of and lack of control of small arms appears to be a permanent challenge to the authority of many states. Such uncontrolled forces have played a decisive role in the instability in Lebanon and the broader Middle East, in Cambodia, Somalia, Ethiopia, Haiti, Rwanda, etc. Many states, or at least the regimes running them, have demonstrated structural weakness, which prevents them from fulfilling the minimal function of civil pacification. Such states also risk becoming sanctuaries and training sites for all kinds of subversive activities. On the other hand, the evolutionary nature of power means that there is now an emphasis on new non-military or non-security related factors that largely escape state control—ie, the immense and disparate sector of exchanges, be they economic or cultural, as well as the circulation of ideas that underlies the dynamics of civil societies. States can move with these nonsecurity related factors and eventually be the instruments of their expression, but they do not shape such factors; and more often than not, their attempts to oppose such factors prove to be in vain, at least in the long run. The discrediting of state-led economies, sealed by the disintegration of the USSR, reconfirms the absence of state control in this domain for a long period. These phenomena characterise even developed or advanced states, the most flexible of them operating on multifaceted and increasingly vast markets. The question is sometimes asked, what is the role of the state in, for example, Japan? Does, as some claim, the Japanese state use the export and

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investment capacities of its multinational firms to benefit its national objectives through efficient public sector coordination? Is it not more of a ‘corporate state’, dominated by their interests with no oversight of this strategy? If this becomes the case for an increasing number of states, there would be a predominance of the transnational over the interstate, engendering new forms of power, the history and nature of which would elude the empire of states. Affirming the channelling role of states does not necessarily translate into an argument for state monopoly or total control. The expression ‘to channel’ more aptly suggests an aptitude to harness, to trace a path, to determine a direction, to serve as a necessary intermediary for other forces that can crop up from various sources and grow through their own devices. These ‘channelling’ functions allow for perspective on the preceding objections to the continuing centrality of states. First, such a perspective underlines a contrario the regulating role of power as well as the decisive importance of the state with respect to it. Notably, a deficit of power is usually what brings about a lack of regulation, and disorder most commonly results from the impotence of a state. No other channelling instrument or form is able to substitute for states. The return to security and stability happens either through the reconstruction of the state itself or through the intervention of other states. A state obtains its legitimacy via international organisations, which are institutional instruments for interstate cooperation. The previously mentioned examples demonstrate this clearly. Second, although the evolution of forms of power has led to a diminishing importance for territorial control and an expansion in spaces of exchange, states nonetheless continue to dominate these non-territorial spaces. Control over these spaces remains essential for the security and rational administration of international relations—in other words, the security of not just statebased organisations but also the exchanges, transactions and communications that develop between them. Physical and material security, as well as stable and secure legal order, is best brought about by states. In addition to the state’s role as distributor of such spaces is its role as producer of regulating norms—fiscal, social and boarder norms, through which states act in concert. States are the only ones able to determine and to ensure respect for the legal frameworks for exchanges and to guarantee transaction security. The state as provider of public services is paired with the state that manages private interests, which can thrive only when the state acts as broker in organising their relations. In addition, dominating regimes do not come into existence in the international order directly or out of nowhere. They are always the projection of the domestic models of states and the result of compromise between competing systems. The contemporary success of liberalism is, for example, tied to the higher degree of success by market economy countries.

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ii. Rises in Power A rise in power is usually the result of a convergence of objective elements and a long-term political project. A policy that is based solely on the will of a single person or even of a small group is generally bound to fail. Coincidences of objective and deliberate circumstances can occur in a variety of ways. States cannot entirely anticipate or plan the acquisition of components that favour their rise in power and ensure a commensurate international role. Accidental or historical changes are out of their control, even if they subsequently have opportunities to exploit them. For about thirty years, the United States and the Soviet Union benefited from the weakening of the traditional European powers after the First World War, collecting the dividends of the Second World War. After the war, West Germany and Japan, though defeated, witnessed both relative and an absolute economic prosperity. Their growth in power contributed to the evolution of power’s own forms and criteria. In addition to accidents of history, voluntary or deliberate actions play a role as well. Economic development of West Germany and Japan resulted from the specific policies followed by their governments and accepted by their populations. These policies represented a consensus around which national identity and renewed international status were constructed, making a break with militarist pasts. The objective elements were therefore assembled by a consistency of political action. In the same way, the United States and the Soviet Union accepted, assumed and quickly asserted the dominant international roles that were bestowed upon them. They actively consolidated their bases, though they rested upon different conceptions of power. Still, policies developed entirely in isolation from reality are likely to fail, because power is a capacity and not simply a boast. Generally, rational management of power must be careful of the excesses of ambition or else risk overstretching. The historical failure of war and of policies that aim to impose themselves by militarism or violence must be noted. Overstretching characterises the attitude of countries that attempt to play roles that are beyond their capacities. If they can create the illusion for some time or endeavour to compensate for their objective limits by sheer will and diplomatic activism, the infallible law of power (dura lex) will eventually cut them down to size. There are many examples: the policies of France’s Second Empire, which sought to make France Europe’s referee and, through its intervention in Mexico, even hoped to be a counterweight to the United States in North America; Wilhelm II, whose break from the more prudent policies of Bismarck, who had wished to avoid naval and colonial competition with the United Kingdom, dangerously increased the number of Germany’s adversaries; France’s isolation in 1870 and the encirclement of Germany in 1914, which were the fruits of these actions; and Mussolini’s Italy with its devastating consequences for both regime and country (a grotesque example). The

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USSR sought to reinforce its role as a world power with objective bases that were too diminished. A similar reproach has sometimes been made about Gaullist policies; as a German politician cruelly put it, France was attempting to ‘travel first class with a second class ticket’. France noticeably withdrew from such ambitions after 1968 and President de Gaulle’s departure. The criticism seems nonetheless excessive, as Gaullist objectives and the foundations laid by the Fifth Republic have demonstrated remarkable stability and responded well to the decline of some forms of power that France was undergoing at the time. The risk of overstretching still remains more present when an established power is declining and has not become aware of its own decline in time to react to or cope with the consequences. Regarding the historical failure of war and, more broadly, policies of force and constraint, examples also abound. States that attempt to impose their objectives by violence are subject generally to repercussions. One can think of Louis XIV’s France or the adventure of Napoleon I, whose excessive ambition along with brutal methods profoundly weakened the country and, his personal glory aside, diminished the standing of France in Europe over the long-run; or Hitler’s policies of aggression and conquest; or imperial Japan. More recently, Iraq has suffered the consequences of a failed occupation and annexation of Kuwait, while Arab attempts to eliminate Israel with violence have failed. In much the same vein, Israel is failing to subdue the Palestinians through military violence. More often than not these policies are the instruments of nondemocratic regimes. Once back on better suited policy tracks, the countries in question can even regain an influence surpassing that associated with their negative pasts. The repetitive aspect of such failures demonstrates that methods of cooperation and mutual understanding are always in retrospect more efficient than the seemingly simpler and quicker solutions of force. An observation by Ernest Jünger illustrates this failure metaphorically: writing during the Second World War, he noted that European civilisation had produced three masterpieces—the British navy, the German headquarters, and Paris. Only one remains today. iii. Declines in Power According to the nature of a decline in power and the manner in which it is perceived by a state that is experiencing it, there is a corresponding realignment of the factors that brought about the decline and the development of new power configurations. a. Decline and Perceptions of Decline Decline can come in many forms, and its consequences differ according to how well a state experiencing decline perceives it. One can distinguish between relative and absolute decline, according to origin and context.

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Relative decline includes situations in which a given state experiences a rise in power while its partners remain unchanged. For example, the reunification of Germany modifies the relative influence, at least in Europe, of France and the United Kingdom. In contrast, in a situation of absolute decline, there is a substantial weakening of a state’s power with regard to its former position. The colonial powers, for example, were stripped of their empires and saw their levels of power diminish objectively. The two hypotheses are not, however, in isolation of one another. Frequently in fact, the promotion of some states results from the success of new forms of power, and the decline of others stems from a prolonged attachment to archaic forms. The relative rise of Germany in comparison to the USSR can be understood by the growing role of economic factors on one hand and the overestimation of the role of military force and territorial control on the other. In the end, the decline of the USSR, though relative at first, assumed an absolute character. On the other hand, in the post-Second World War era similar changes in forms of power led to the relative decline of the United States with regard to Western Europe and Japan, if the comparison is made on an economic level but not if considering a military capacity to contribute to international security. The capacity to perceive and analyse one’s own decline is a good criterion for judging the efficiency of a state’s components, such as civil society, and it can condition the responses necessary to address the decline. In this respect one can observe the relative advantage of democratic regimes, which allow for public expression, thereby encouraging a diversity of viewpoints, in comparison to dictatorial regimes, which do not authorise any public expression save that which toes the official line. But it is also convenient for a state to have a diplomatic service capable of evaluating developments outside its own borders, monitoring them in coordination with a sufficiently dense and pluralist network of independent intellectual analysts. The analytic foresight needed to anticipate and avoid decline is often at odds with the inertia that plagues most bureaucracies, especially stable and unchallenged ones. For example, the Vichy Regime that defended France from defeat had a fetishist fondness for its Empire, while General de Gaulle sought forward-looking policies. Some processes may of course be unstoppable, whether anticipated or not—such as the German reunification at the end of the 1980s, or decolonisation more generally. A state’s inability to analyse its own situation indicates a complete lack of power, even to control itself. Under such circumstances, other states will inevitably interfere and thus bring about a sort of collective management of the decline. Thus the decadence of the Ottoman Empire throughout the nineteenth century led to the intervention of the Concert of Europe. The decline of the USSR called for assistance from Western countries. A burden is therefore levied externally, and the domestic problems of a declining power become international problems. In fact, it is often the case that

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international decline is tied to domestic weakness, and the two feed off of one another. The end of the Fourth Republic in France was for example marked by paralysis of the political system, especially vis-à-vis the Algerian problem. The imminent internationalisation of the Algerian problem and the suggestion of Americano-British intervention, in concert with the domestic and international outcry provoked the fall of the regime, provided the basis for the return of General de Gaulle and the Fifth Republic. b. Reactions to Declines in Power Though perhaps not the easiest thing to do, a declining state must react from a weakened position to ensure acceptance of new policy orientations and objectives—from its own population as much as from its peers. As such, several options present themselves: withdrawal, metamorphosis and transfer. Withdrawal means that the state in question takes charge of its decline, accepting its own exit from history and from then on playing only a limited or regional role in service of limited interests. Sweden, for example, was once a rising power in Europe but has retreated progressively to a position within its borders. Such withdrawal can consist of symbolic compensations, the country in question fashioning itself as an example, adopting a normative posture or embodying principles and reminding others of a certain international moral standard. Sweden again offers an illustrative example of this sort of normative sublimation, with its support of non-aligned countries, its attachment to nuclear disarmament and its active stance on the environment. It is in a way the dictates of the powerless that project themselves or imagines themselves as power, by searching for an empire over values. For others, like Austria, remnant of a once dominant Empire, there is a hesitation between protective neutrality and a role as a bridge between Western and Eastern Europe. The same temptation exists in France in a recurrent fashion, but its geopolitical situation, the weight of its central institutions, its diplomatic traditions, the persistence of its cultural influence and the dynamism of its civil society have until now kept this path at bay. Metamorphosis is the most ambitious and positive reaction to decline that a state can have—by maintaining its role while adapting itself. One could think of Germany or Japan. A formula that also succeeded in its time was that of Gaullist France. It destroyed archaic elements such as the colonial empire, overcame paralysis in the institutional and political systems, and developed new forms of power (nuclear power, a position in the space race, open borders, industrial growth and reinvestment in Europe). It thus laid the foundation of an independent foreign policy. Such a success hardly had any precedents since Richelieu or the first decades of the Third Republic. De Gaulle attempted to rediscover this inspiration, obsessed by the idea that ‘France lost the secret to its power with the Ancien Régime’. The process of state metamorphosis supposes two mechanisms that are practically simultaneous: breaking with outdated forms and imposing new

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ways. Some policies go through only the first half and remain unfinished. Thus Pierre Mendès-France was able to initiate decolonisation and prepare the way for nuclearisation, but his policies remained distanced with respect to the larger European project and lacked the necessary domestic political support. Mikhail Gorbatchev was able to make the need for fundamental reforms understood but was not able to realise them; as such, in hindsight he seems to be more of a liquidator than a builder. Transfer, the third option a state can choose in reacting to its own decline, consists of passing onto others its interests and responsibilities. This is the most economic option but supposes that the state will accept a certain amount of dependence. Such a transfer can come at the expense of one or many other states. This was the situation imposed upon the United Kingdom after the Second World War. Benefiting from a common language, as well as ideological and cultural similarities with the United States, and after heated economic competition with the United States during the period between the two wars, the United Kingdom in the end chose to fold and, in exchange, work toward the preservation of a special relationship. Essentially, the formula conformed to the economy of means, and the United Kingdom, with its long and varied historical experience, hoped to serve as the knight on top of the American horse, or as Athens to nascent Rome. But as American Secretary of State Dean Acheson stated, ‘England has lost an Empire but has not yet found a role.’ The special relationship eventually was reduced to a symbolic dimension, leading the United Kingdom to choose a European orientation, a position that it has only partially assumed. France, which does not benefit from such a relationship, nonetheless suffers from a persistent big brother syndrome, the product of a fear of isolation, which alternatively benefits the United Kingdom, the United States and Germany. The results have rarely been good and have sometimes been disastrous, notably its alignment with the British policy of appeasement toward Nazi Germany. In theory, if a state chooses to transfer its power to an international organisation, whereby policies and interactions are shared on an interstate level, the risk of dependency is reduced. However, the organisation in question can be dominated by one state that is more powerful than the others (such as NATO and the United States). In all instances, it involves a profound amount of ambiguity as Member States conserve their own goals and policies. Even in the European Union, which is oriented towards integration, competition between Member States continues. Uncertainty surrounds the issue of the definition of the combined entity—whether it goes beyond the member states and their individual interests or whether it is a simple framework that allows the member states to widen and reinforce their collective capacity for action. To quote Zbigniew Brzezinski, for example, Germany looked for redemption in constructing a European Union, while France looked to use it as a way to contain Germany and transcend the limits of its power.

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2 On American ‘Hegemony’*

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HE TWENTIETH CENTURY was spent waiting for the Americans. Until the end of that century, Americans would come only in bits and pieces, or gradually. Or they would leave, once their mission was accomplished at a particular place and time. Even before the end of the twentieth century, the influence of Americans—their images, their products and their wars—and the fascination/repulsion elicited by them had placed Americans at the heart of international relations. However, it was only after the twentieth century drew to a close that Americans became omnipresent. Their victory over the Soviet challenge marked the beginning of a new phase. With the beginning of the twenty-first century came the events of 11 September 2001, which signalled a radical, asymmetrical questioning of American influence and domination. It is not only a particular state that has been put into question and challenged but rather a model of civilisation itself, even a certain type of international relations—namely the predominance of interstate relations. But are recent events likely to weaken American domination? Or will they on the contrary tend to reinforce it, to the extent that recent events lead to crises, and crises are usually solved to the advantage and in the interest of the strongest forces? It is obvious that the question must be placed in a larger political and historical context. The question is so immense in scope that we can only begin to tackle it here. Nonetheless, anyone who tries to reflect on international relations will be faced with the fact of American supremacy. The following remarks are therefore meant not to analyse American supremacy in all its dimensions but instead to attempt to ascertain its dimensions. This question is indeed at the heart of international relations; furthermore, the same question lies at the heart of the very conception that one has of international relations. That there is an American hegemony—if we use this term for the moment without any further precision—has become a truism. However, this simple remark is confounded with ambiguities and raises a goodly number

* Previously published as ‘L’hégémonie américaine en question’ (2002) 3 Annuaire français de relations internationales 3–42; and in English as ‘An Analysis of American ‘Hegemony’ (2002) Journal of Social Affairs 55–113.

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of complex questions. Three such questions come immediately to mind. First, hegemony is a form of domination over others. How is this form of domination distinguished from other forms? Second, the domination under consideration is that imposed by a state, and the framework for analysis implicitly presupposes that states maintain their predominant role in international relations. To what extent has the role of states been weakened? The view that only states are important actors in international relations nowadays faces strong intellectual and ideological opposition. Third and finally, the domination or hegemony is assumed to be that of only a singular state, the United States; but is this something to prove or disprove? Although the above issues may in some sense be the most fundamental ones, this does not imply that other questions should be ignored. It is also important to consider carefully the controversial and critical meanings that the term ‘hegemony’ might represent, as well as the immediate dynamics of international relations that are currently relevant. The events and repercussions of 11 September 2001 have obviously given international relations a new appearance; it is less clear that they have led to a fundamental change of their structure. The changes arguably pertain to the technology employed by electricians or lighting technicians, rather than to the art of the architect. Three themes that are closely intertwined must be explored and disentangled: the forms of domination and the exact role of hegemony in these forms; the relevance of a state-centric analysis of international relations in light of the multifarious, complex, and at times contradictory phenomena of the increasingly transnational nature of international relations; and an analysis of American foreign policy as corresponding to a hegemonic position. We will attempt to shed some light on these different aspects without overlooking the key question, namely the validity of the thesis that American hegemony is the organising principle and leading thread of contemporary international relations. To this end, we shall examine in a more theoretical fashion the bases and forms of state domination (section I). Then, employing a more analytical approach, we shall examine the components of what might be termed ‘American hegemony’ (section II). And finally we shall assess this thesis of an American hegemony against the arguments of those who question its existence altogether (section III).

I. State Domination and its Forms In order to be stable, or at least lasting, any domination of this type requires that other players or partners perceive such a degree of supremacy, objectively as well as subjectively. Such state domination offers a choice among a diversity of options, many of which have been historically practiced and tested with varied degrees of success, hegemony being only one such option.

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A. American Supremacy Is there any need to expound on American supremacy, given how overwhelmingly perceived it is, and how real it is? To notice it does not imply any value judgment, either in favour of the United States or to the detriment of other states. In the current world situation, American supremacy, at the least in a superficial sense, is a reality that is recognised by all other states. It is not the existence of American supremacy that raises worries or challenges but rather the uses to which it is put. The term ‘supremacy’ by definition has a relative meaning and implies a comparison between entities of the same order. American supremacy is indeed the supremacy of a state, but it is not limited to the apparatus thereof, as contrasted with civil society. Rather, it concerns the state on the international level as an envelope, as it were, or a synthesis of both, with all the synergies attributable to the whole. If we want to consider both the current state of American supremacy and its dynamic, it is a comparison with Europe that is most instructive. Such a comparison shows the universality of American domination. i. Europe and the United States: Contrasting Evolutions If we look back at history, even a cursory glance at the turns of the last three centuries reveals a marked contrast between the evolution of Europe and that of the United States. Europe experienced convulsions and setbacks, mired in self-doubt and worry about its future. By the end of the eighteenth century (which in reality ended in 1815), the French Revolution and the subsequent wars of the Empire had put Europe in a convulsionary period, from which it emerged weakened. Near the end of the nineteenth century (which ended politically in 1914), Europe rushed into a thirty-year civil war that left it divided and ruined. Near the end of the twentieth century, Europe was questioning itself about its dimensions, its identity, its role and its future; in all respects, it is no more than a region, at best a regional entity, with no decisive hold on world affairs. The United States, by contrast, has witnessed ends of centuries that are quite triumphant (and the two strands of history are not entirely separate). The ascent of the United States was extraordinarily fast. There were less than two centuries between its birth out of virtually nothing and its ascent to a world stature that no one seems to be able to dispute or compete with. One could mention three successive American revolutions, namely the political, economic and technological ones. The political revolution involved European-related transformations. It resulted from the revolt and eventual independence of the American colonies and the consequent birth of the United States. The new country over time became a model for certain other states. In the immediate term, however, the revolution closed the Americas to Europe—first North America and then

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South America. This occurred at a time when the Americas were a seemingly natural place for expansion, promised to Europe by history. The European countries subsequently found themselves subject to multiple convulsions, internal as well as international, dispossessed as it were of their universal future. The colonial conquests of the nineteenth century reflected a return to the past, a movement that was archaic both in its objectives and in its methods; the negative consequences of nineteenth-century colonialism would then mark the twentieth century. The United States appeared as the masterpiece of the philosophy of the enlightenment and European political thought of the eighteenth century: it embodied individualism; progress; the perfectibility of humankind; deism; a certain form of cosmopolitism that leads to acceptance of the most diverse contributions with a certainty that they can be integrated; and the principles of a social contract freely and willingly accepted or consented to. These founding themes witnessed remarkable stability and exceptional fecundity. The United States remained faithful to these themes while Europe abandoned them or pretended that it could or had surpassed them. It was as if the United States had jumped over the doctrines of the nineteenth century, especially the diverse varieties of socialism, nationalism and other avatars of collective thought, the implementation of which eventually led to the destruction of Europe in the twentieth century. The second revolution—the economic one—resulted from the considerable success in the United States of the industrial revolution, which made the country the first new world power since the end of the nineteenth century. This period also coincided with the almost complete eviction of European countries from the American continent; US conquest of its own national space brought about accelerated demographic development. It also coincided with the first signs of a universal ambition and even imperialistic inclinations. The technological revolution that characterises the end of the twentieth century was initiated by the United States, with the country seemingly determined to maintain a permanent technological advantage over all other countries, Europe in particular. This movement began during the preceding few decades and rapidly drew the attention of scholars (for instance, Jean-Jacques Servan-Schreiber in Le Défi américain and The American Challenge (1966)). US technological supremacy has been reinforced by Europe’s own weaknesses, but it reflects a capability for adaptation and innovation that is historically unprecedented. At the same time, stable principles of organisation and national cohesion have been preserved in a remarkable fashion, especially when compared to a number of other countries that are both older and sociologically or culturally more homogeneous. These three successive revolutions have had cumulative effects. They made of the United States a true revolutionary power, even within the realm of international relations. Not only is the United States fundamental to the

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major evolutions of power, but it has also initiated new concepts in international relations and attempted to universalise them. These revolutions have also made of the United States a success story and a universal model— for nearly all countries and all societies, without any geographic or cultural limit; and in all domains, including technological, economic, political, military, cultural, artistic and intellectual ones. The United States is not only a country, but a continent; not only a continent, but a civilisation—and not only a civilisation, but the civilisation. To put it in simple terms, today everything that is not American or that is not in conformity with American norms is perceived as outdated or even menacing ii. Universal Supremacy Historically, international relations has appeared to be dominated by images of confrontations between opposing groups, forces, principles, interests and nations. Such images have a tendency to be reduced to and typified by two duelling adversaries: Athens versus Sparta; Rome versus Carthage; Louis XI versus Charles-le-Téméraire; a king versus an emperor; France versus England; England versus Russia; France versus Germany; America versus the Soviet Union. The existence of an enemy would even define politics if we listen to Carl Schmitt. Georgi Arbatov, advisor to USSR President Gorbachev, alluded to this when he pointed out that the USSR fall from power was rather ironically made up for by the fact that the United States had lost the enemy that had, in the final analysis, ensured its supremacy. The same could be said of the Roman Empire at its climax—or of the British Empire, although its domination was shorter in duration and far from being genuinely universal or unchallenged. Going forward, in the field of international relations, the United States—its representatives, businessmen and citizens—seem to hold a three-fold monopoly. Only to the United States is the entire world completely accessible, and not only in terms of communication and information but also in terms of capacity for military intervention. Perhaps we cannot go so far as to assert that Americans are at home everywhere, but they nonetheless clearly have the capability to introduce themselves everywhere: their images are almost universally recognised, and their language almost universally spoken. Americans are the only ones who possess the human and technological resources necessary to acquire knowledge rapidly and thoroughly enough to address virtually all the questions and situations that are likely to be of interest for international relations, wherever they occur. Another dimension of this accessibility is the universal attraction that American civilisation possesses, not only for large segments of public opinion in most countries but also seemingly for the elites everywhere in the world. We are not very far away from a time when the entire world’s ruling political, economic and intellectual elite will have been trained by American universities and influenced by their values.

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Americans are the only ones who can dream the world, and they are capable of impressing upon international relations their ambitions, their aspirations and their understanding of liberty—all with a fluidity, ease and familiarity that only power (even virtual power) can provide. Could a contemporary Jules Vernes be anything other than American, or at least totally Americanised? The ambitions of other actors seem to be limited to regional problems and regional issues or to attempts to reorient American policy on one point or another. By contrast, the United States is capable of not only envisaging and dealing with universal questions but also heavily influencing all regional questions. Americans are also the only ones who can think the world, both in a theoretical, academic manner and on an active, political level. Theoretical debates in international relations are not only initiated by American universities and research centres but are also incorporated into American political debates, to which the rest of the world becomes eith witness or disciple. Politically, Americans are the only ones who can define a range of options and then possess the means to make the corresponding decisions and implement them. Thus, the debate on American foreign policy often overlaps with that of the future of international relations as a whole—and it thus tends to become an American–American debate. The contested theses of Francis Fukuyama, Samuel Huntington, Christopher Layne and Zbigniew Brzezinski are well known. This debate is an open and public one, but the United States also knows how to preserve secrecy, when necessary, with regards to its intentions and decisions. To all this corresponds a feeling of superiority that is spontaneous in some respects but orchestrated in others. It is spontaneous because American public opinion is conscious and proud of the country’s influence and power. It is orchestrated in the sense that the academic and political milieux create reasons for this feeling of superiority to grow and prosper. This is done by emphasising that American might is exercised legitimately in all its dimensions—in the capacity for action, coercion, deterrence or refusal. American power is also exercised in multiple ways—as power over things, power over minds and power over values. It is only on the last point that Europe at times attempts to compete with it, by promoting, for instance, a different conception of human rights. The feeling of American superiority is experienced as one of a nation-state that not only rallies around its flag but also manages to preserve since its origins the same Constitution and principles and knows how to draw on these principles (rather than compromise them), amending them when necessary. This feeling of superiority can also be seen as one that frees the country of any constraint in international affairs, leaving the United States with a freedom of choice of the widest margins. This superiority is a distinctive characteristic since the United States has no equal. Could this not give rise to an isolationist policy, since the United

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States could prosper by virtue of its own resources and simply put itself forward as a model, which others would be free to emulate or not? Indeed, this is a recurring temptation for the American public, one that is justified historically. However, the period between the two World Wars has led to a dismissal of the isolationist option, which was morally and politically questionable to begin with. After contributing significantly to the Versailles Peace Treaty and to the creation of the League of Nations, which it then rejected, the United States also stayed neutral in face of the rise of totalitarian regimes in Italy and Germany, entering the War in 1941 only reluctantly. The isolationist option also proved untenable because it did not prevent the United States from being driven into a war that it had in part provoked. American superiority has now translated into domination on the international level, and this seemingly natural order of things can only be challenged by either deficient or criminal minds. The global power, a single superpower—hyperpower—is a reality. In other words, global governance that is multipolar, decentralised and diffuse is in fact only an ideal that is quite in contrast with reality.

B. Hegemony as a Form of Domination As a concept, hegemony is a variant or one of the forms of domination. Hegemony inscribes itself in a logic of power that entails unequal capabilities and perhaps also implies a motivation, even at the outset, to achieve this inequality for the purpose of furthering one’s own advantage. The concept of hegemony can be interpreted in different ways, and it is therefore important to specify the meaning that we invoke here. Before it is defined, hegemony will first be distinguished from imperialism and leadership, which are other forms of domination. These three terms should not be confused. In the current context, we interpret the term ‘imperialism’ in a more political than Marxist sense. Imperialism consists of a form of direct domination that is heavy, complete, territorial, political and coercive (immediately or eventually). It brings together diverse groups without truly assimilating them and maintains instead a more or less pronounced discrimination between them. This is done in the interest of a particular beneficiary group, who tends to universalise its values but not its interests. The historical model for imperialism, at least in our collective memory, is the Roman Empire, most especially during the phase of its ascension. One is tempted to compare the United States of today and the future to this historical model. Romanesque imperialism subsequently witnessed many different manifestations, for example, the colonial empires that marked the collective apogee of Europe. These did not last more than a century, and the Soviet Union lasted even less time, despite the formation of a block of geographically contiguous countries that were grounded in a common ideology. However, the repeated

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and ever faster historical failure of this form of domination does not condemn it once and for all, forever. After all, seemingly obsolete political forms that have been rejected could appear again, in light of new circumstances, and the imperial notion has already known sudden revivals after long periods of decline. In the immediate and foreseeable future, however, no domination seems likely to prosper on these bases. Indeed, such bases ignore the desire for identity and autonomy by the groups that find themselves subject to such domination. They are also at odds with the dominant values of modern international society, the expansion of which during the twentieth century was accompanied by an irresistible movement for emancipation, which led to the proliferation of new states (some 200 today, as compared to about 50 in the aftermath of World War II). Furthermore, direct territorial domination is of little benefit: it exposes its upholder to a multiplicity of constraints, such as ensuring public order and assuming the weights of administration, education, housing, employment and development for diverse populations (and all this in a climate of lingering hostility, if not open resistance). In short, as demonstrated by the setbacks or reverses of colonial powers, the costs of imperial enterprises rapidly begin to outweigh the expected benefits. It is true that certain groups within a dominating power can take advantage of this form of domination, but their gains are not necessarily in harmony with the long-term collective interests of the said power. It is clear that European countries benefited more from the construction of Europe than they did from their colonial (mis)adventures. It is also clear that the construction of Europe is not subject to an imperial process: if it does indeed represent a sort of agglomeration, it is nonetheless an agglomeration that is grounded upon a voluntary basis, each stage presupposing the consent of the governments, as well as, albeit to a lesser degree, that of the populations concerned. As compared to imperialism, leadership is of a completely different nature. Indeed, it seems to oppose imperialism point by point. Leadership involves a legitimate diversity of groups that are willingly united around collective interests and projects and are also united by a dominating power that is capable of synthesising those collective interests, initiating the projects and ensuring their management toward a common purpose. Such a formula assumes that the dominant power is capable of mobilising and leading a coalition of groups to pursue objectives that go beyond the narrow selfinterests of individual member groups. The UN Security Council, with the collective leadership of its five permanent members, offers an institutional example of this form. Similarly, the role of the Franco-German duo at different stages of the construction of the European Community provides a diplomatic variant. From these examples, it is clear that leadership need not reside within a single state. In any case, leadership implies certain conditions. Namely, the leader or leaders must know how to transcend a narrow or short-term vision of their

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own national interests. Instead, a larger vision inscribes national interests within a more global and longer-term context. Leadership implies that leaders accept both the responsibility of becoming actively involved and the obligation to express their solidarity with the group through the use of their own capabilities; that they give to this involvement a stable if not an institutional form; and that they act as partners and allow other group members an equitable part in the defining of objectives and in the decision-making process. Leadership, which should be altruistic, grants every party a place in accordance with its own capabilities and as such is accepted by those being led as a result of their rational calculation and shared values. This formula seems to correspond to American policy of the 1940s and 1950s, including roughly the Roosevelt, Truman and even Eisenhower presidencies—see, eg, the great alliance against Nazism and the creation of the United Nations (in which the US played a decisive role, particularly with regard to the Charter, the mechanisms of collective security and the search for universal political cooperation). On a more limited level, at least temporarily, this also applies to the Marshall Plan, the Atlantic Alliance and the ‘pactomania’ that expanded it. The 1940s and 1950s knew, in a diversity of ways, strong involvement by the United States with coalitions that it led with the consent, and even upon the request, of its partners. These coalitions were legally and institutionally organised, with a concern for endurance and collegial deliberations. The memory of this involvement remains vivid, so that even today, many tend spontaneously to see this leadership, essentially an altruistic and benevolent form of domination, as the epitome of American domination. Unfortunately, the nature of American domination has changed substantially. Hegemony, as a particular form of domination with a universal scope, must be placed in the context of the previous formula. It is one of the options offered by supremacy, along with imperialism and leadership. Any pure form of hegemony is indeed difficult to maintain, even if one suspects at times that the United States, with the imposition of free markets and globalisation, leads a predatory economic war in its own exclusive interest. It is clear that hegemony also diverges from imperialism. It rejects any direct political and territorial domination as being impractical, useless, too costly and in contradiction with its objectives and possibly even its values. In contrast to imperialism, hegemony involves an indirect domination that draws upon the capabilities of the subject parties themselves. The latter must find certain advantages to the situation, such as an increase to their security or other types of beneficial cooperation. Hegemony rests on a culture of submissiveness, on the acknowledgement of a superior entity. Hegemony is also distinct from leadership. The latter entails a certain element of altruism. It also involves the organisation of a collective project and implies something in the nature of meaningful partnership, with the leading power acting roughly as a primus inter pares. Good leadership even tends

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eventually to abolish itself, since it allows partners to make up for their deficiencies over time. By contrast, hegemonic power strives to preserve its own supremacy. It evinces no desire to have partners, instead preferring to have clients and indebted parties. A hegemonic power exempts itself as much as feasible from the common rule. All forms of domination are grounded in supremacy. With hegemony, the supremacy is utilised in part to help stabilise the status of the hegemonic power, which, to this end, seeks to obtain the consent of the subjected parties and, if possible, to entrench it. To this effect, a hegemonic power likes to present its domination as relatively mild and even benevolent. This might be likened to the domination exercised by the head of a family or by a school teacher. Reality, however, is different. Other powers are treated, if not as incompetent, at best as minors who need to be managed, guided, supervised and, when necessary, protected—even against themselves. Such a school teacher not only educates and trains the best elements but establishes an institution of supervised learning for undisciplined and not very gifted students, one in which the crack of the ruler is never very far away. Hegemony does not necessarily involve a global vision of international society, but at the least it does imply a hierarchy under which a status is assigned to everyone. Unfortunately, for all other parties, the status is an inferior one with limited margins of movement and thus under control. A hegemonic power seeks nevertheless to limit its external commitments and aims at selfsufficiency, for hegemony has meaning to the dominating party only if it is profitable in a lasting manner. At its core, it represents the form of domination closest to isolationism—or the only variation thereof that remains practicable nowadays. Hegemony rests on a combination of indifference to the external world (to the extent of possibly ignoring it) and largely military approaches to security, which might entail armed coercion, exercised solely for the national interests of the hegemonic power (as determined by that power). As we have mentioned before, however, hegemony requires a certain amount of consent and even cooperation on the part of the subject parties, who must find some benefit in their domination. A hegemonic power thus accepts or seeks the support of small powers, because the hegemonic power cannot tolerate the ascent of rival powers or of opposing coalitions. Likewise, as compared to domination by nearby, powerful neighbours, small powers might well prefer a more general domination by the hegemonic power, which might be situated geographically far away. Forms of domination other than hegemony have more readily cloaked themselves with imperial forms, in a more or less close imitation of the Roman Empire. This typically encompasses territorial and political domination, which ensures direct control over subjected territories, submission of populations, centralisation of the economy around metropolises, as well as some effort at unification, at least culturally. Historical illustrations abound,

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even in the twentieth century, including the European colonial empires and the Soviet Union. It has been sufficiently demonstrated, by both experience and analysis, that in spite of its impressive appearance, this type of domination is doomed to be precarious and eventually to fail, for a variety of reasons, including the costs of administration, the difficulty in performing needed operations in territories that are unfamiliar in nature and located geographically far away, and the impossibility of uniting diverse populations beyond the superficial level that results from coercion. The United States has, until now at least, avoided these characteristic traps of imperialism, instead exercising, albeit in an empirical and non-premeditated fashion, a new type of domination, which is precisely that of hegemony. The further invasion of Iraq in 2003 and the continuing conflict in Afghanistan nowadays challenge this wisdom. One can certainly argue that the differences between hegemony and leadership are subtle and even artificial. As seen by those who have a favourable view toward the domination under consideration, hegemony might be construed as leadership. Likewise, as seen by those who have a negative view of the domination under consideration, leadership might be construed as hegemony. A large number of American authors analyse the current position of their country as being one of a benevolent and fruitful supremacy that is faced with the world’s ingratitude. However, we can observe an objective difference between the two formulas. Leadership maintains itself by a politic of redistribution, with advantages granted to all partners. Relevant examples include the Marshall Plan, the North Atlantic Treaty Organization (NATO) near the time of its inception and, more recently, the North American Free Trade Agreement (NAFTA). Hegemony, by contrast, is characterised by ‘sanctions’, a term that tellingly lacks precision but has a distinctly disciplinary or penal connotation. American policy in recent years has largely resorted to sanctions, albeit with varying levels of success. We can also say, to generalise, that whereas leadership attempts to assemble and unite, hegemony seeks to divide and separate, which presupposes the existence of a lesser power. Shall we go so far as to formulate timeless comprehensive definition of hegemony and attempt to fix the concept at the risk of freezing it? Upon reflection, this does not seem necessary for several reasons. First, because, like any other form of domination, it necessarily includes historical and existential dimensions, it might be more useful to delineate hegemony through a number of components and concrete behaviours. Second, because hegemony is to a certain extent an intermediate form of domination—namely, one between interventionism and isolationism—some of these components could seem contradictory. Also, because hegemony is very rarely claimed as such, it is sometimes necessary to take off the mask to be able to identify it. Finally, a definition of hegemony a priori would tend to enclose or confine the concept within a scholarly or even dogmatic approach, with the consequence

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that essential aspects might be missed. It is therefore preferable to try and seize the notion of hegemony by a progressive construction, through its components.

II. The Components of American Hegemony We can begin here with a hypothesis, often heard in the United States itself: the world is more in need of the United States than the United States is in need of the rest of the world. If we proceed from this hypothesis, such a state of affairs would give rise to a fundamental asymmetry in the relations that the United States entertains with other countries. In its external relations, the United States would have a freedom of conception, decision and action that is incommensurate with that of any other state or organised group. It is within this context that we will consider the means and methods employed by the United States. On the other hand, the United States also seems to display a constant concern with maintaining the above-described liberty of action for itself. Might this be indicative of a certain indeterminacy, of a limitation of means, of a certain wait-and-see approach, or even of political indecisiveness? It is these types of considerations that render the ambiguities of alleged hegemony.

A. Means and Methods When examining the means and methods of domination used by the United States, it is useful to consider different levels—the different levels considered below are not intended to be exhaustive. On the diplomatic level, what seems to prevail is opportunism, which disconcerts the usual partners of the United States. On the strategic level, there is an intent to ensure considerable military supremacy, which is undertaken through the regionalisation of security and the maintenance of a universal equilibrium that it considers as a condition of its individual hegemony. On the economic level, the aim is to maintain an American advantage, and this aim is supported by espousing the liberty of private actors rather than the involvement of public authorities. i. Diplomatic Opportunism Public debate in France tends to emphasise American unilateralism, generally with a critical tone. It is undeniable that for some time now, unilateralism has been the instrument of choice for the United States, and not only since the post-Cold War period. Indeed, we can identify many prior manifestations, including the decision of the Nixon Administration in 1971 to end the convertibility of dollars into gold and the deregulation of air transportation in 1977, which was initiated by the Carter administration. But American

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unilateralism witnessed a considerable extension beginning since the early 1990s’, with sanctions and countermeasures enacted against a number of very different states, for a variety of reasons that were economic, political and even strategic and military in nature. American unilateralism can also be seen in a spectacular fashion through the rejection of international instruments and regulations, many of which had been negotiated and formulated with US participation. Pertinent examples that have caught particular attention include the conventions on the elimination of anti-personnel mines (1997), the International Criminal Court (1998), the complete prohibition of nuclear tests (1996, rejected in 1999), the Kyoto Protocol on the environment (2000) and the conventions on corruption and money laundering (2001). An older example is the refusal in 1982 by the United States to sign the Convention of MontegoBay on the law of the sea; this only came into effect in 1994 after it was substantially amended in accordance with what suited the United States— and even then the United States did not ratify it. This unilateralism betrays a double standard. On the one hand there is a unilateralism of projection, which tends to impose on the outside world norms or values that are either American or at least supported by the United States. Such projection is enforced by applying measures that aim at penalising the recalcitrant. On the other hand, and especially in the economic and strategic arena, there is a unilateralism of protection, which aims at exempting the United States from norms that it deems unfavourable to its interests. In the latter case, the United States might approve when the constraints from which it recuses itself are applied to others; indeed, the United States might not reject the idea of common international norms but rather the idea of itself being subject to such norms. It often takes the position that the common rule of law is not meant for the United States itself and that it must preserve a special status, because of its singular situation (and its superiority). Such policy is the opposite extreme of leadership. Leadership would mean for the United States to lead in the adoption of these universal regulations and to be their soul, as it was the soul, at one time, of the United Nations. On the contrary, the existing policy of selective withdrawal and interventionism demonstrates hegemony. Bilateralism was practiced for a long time by the United States during the period of East–West confrontation. It constituted the principal component of American–Soviet bipolarity—some would say American–Soviet condominium, depending on the analysis or specific cases. Its raison d’être has disappeared today, and we can thus see the United States trying to free itself from bilateralism, not in a systematic way but as a function of the evolving way in which the United States perceives its interests. Thus, the United States tries to escape the constraints of the Anti-Ballistic Missile (ABM) Treaty, which was concluded in 1972 with the Soviet Union and was until now the keystone of the current form of nuclear deterrence. The ABM

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Treaty prohibits the deployment of systems of anti-missile defences and thus cripples the US National Missile Defense Program. It is to be noted, however, that in this particular case, the United States is trying to avoid a pure and simple termination, which would be legally possible. Instead, the United States favours a solution that would be negotiated not only with Russia but also with other partners, particularly European ones, even though the latter have no rights to claim because they are not party to the treaty. The regionalism under consideration here is an open regionalism both with regard to the territories concerned and with regard to its objects, purposes and methods. ‘For example, since the evolution and broadening of NATO can no longer be justified on the basis of the Cold War and protection against Soviet expansionism, NATO’s function is now open to interpretation. Is its purpose to keep Western Europe in subjection or to provide a matrix for its military emancipation? Is it to separate Europe from Russia or on the contrary to provide the means for a pan-European system of security? Is it simply a framework for political consultation, or is it an instrument for military action? In the realm of pan-American economics, NAFTA provides another example. Is it meant to offer a response to the needs of development in the Latin American continent as a whole, or is it a technique for dividing the continent into a zone of North American domination on one side and the other South American countries on the other? Is it an instrument for the liberalisation of trade with other regional entities, particularly the European Union, or on the contrary is it the impetus for cohesion, which will then nurture and foster competition with other regional entities? There is no need to choose, for these different possibilities contribute to the ambiguities that characterise hegemony, as compared, here again, to leadership. Multilateralism is in reality not excluded from the alternatives mentioned above. We are of course far from the time when American leadership largely brought about such mechanisms as the UN Charter and the Nuclear NonProliferation Treaty (NPT); but this legacy has not been entirely rejected, and other contemporary forms of multilateralism have not necessarily been excluded. We have to rectify the impression of a radical change or a desire on the part of the United States to rule out any new multilateral engagement or involvement. Neither are we in the presence of a residual multilateralism that would conserve only a limited and precarious part of what was acquired. It is thus that the United States largely takes advantage of the dominant influence that they exercise within universal financial institutions, such as the International Monetary Fund (IMF) and the World Bank. Simply put, this multilateralism, which was referred to as a ‘tailor-made’ or à la carte multilateralism by the George W Bush Administration, is at the same time negative, willingly coercive and conditional. It is negative in that the United States prefers instruments that increase its liberty rather than those that impose positive obligations: thus the Marrakech

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Agreements and the World Trade Organization (WTO) aim to eliminate, progressively and as universally as possible, the obstacles facing free trade; and opportunistic use of the Security Council by the United States aims to sanction US freedom of action by legitimising intervention under national command, as with the Gulf War (Resolution 678 of 29 November 1990), the intervention in Kosovo (Resolution 1244 of 10 June 1999, which authorised the creation of the Kosovo Force (KFOR)) and the aftermath of 11 September 2001 (Resolution 1368 of 12 September 2001, which acknowledged the right of the United States to exercise legitimate self-defence). This multilateralism is coercive in three complementary ways. First, United States does not hesitate to resort to diplomatic or economic pressure to lead other states to agree to constraints that are convenient for itself, for instance, the indefinite extension in 1995 of the NPT, which was initially concluded for 25 years only. Second, it is coercive because the United States tends to take the view that the norms thus created define a universal code of conduct that authorises it to impose pressure even vis-à-vis countries that did not agree to these norms. India and Pakistan, for example, are not party to the NPT or the Comprehensive Nuclear-Test-Ban Treaty (CTBT)—the latter of which the United States itself has refused to ratify— yet they were subject to US pressure after conducting nuclear tests in 1998. Finally, this multilateralism is coercive because the United States considers it possible to enforce these treaties by its own means when certain parties are inclined to violate them. This was the case when North Korea tried to free itself from the obligations of the NPT at the beginning of the 1990s and when selective countermeasures were threatened against states that did not respect the American interpretation of the Marrakech Agreements. This capacity that the United States attributes to itself leads to the conditional character of American multilateralism. It means that the United States is always ready to free itself from the limitations or constraints that multilateralism implies, if it deems it in its interest to do so. It thus keeps the unilateral option open at all times. For example, the United States since 1991 has intervened against Iraq well beyond what in common opinion the relevant resolutions of the Security Council authorise. If the latter does not seem disposed to give it carte blanche, the United States does not hesitate to intervene without authorisation, as it did in Kosovo in 1999. More generally (and we shall come back to this), the United States seeks to free itself systematically of the limitations on the use of force that are imposed by the UN Charter. It seems as though the United States is determined to keep two irons in the fire: multilateral action if possible, but unilateral action if necessary. This is by no means a new policy. After 1945, the United States established a system of collective security through the UN Charter but at the same time developed its own nuclear weapons capabilities. The latter helped lay the ground for a doctrine of deterrence, which rests on the primacy of

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individual security and is at the extreme opposite of collective security. It is fair to add, and we shall come back to it, that the United States does prefer to act within the context of coalitions. However, the preference is not for pre-established and institutionalised coalitions but rather for ad hoc coalitions, in which it can keep the upper hand, as in Kosovo and in the aftermath of September 11. ii. Military Supremacy, the Regionalisation of Security and Strategic Balance In relation to security, the most visible element of American policy is the willingness to preserve military supremacy over any potential opponent or any potential coalition. This imperative does not dictate a given armament policy of its own but rather dictates all such policies. It supposes that quantitatively as well as qualitatively, the United States is able to deter any state that might be tempted to oppose it and that it also is able to enforce successfully any coercive actions that it feels justified. The preponderant military use of extra-atmospheric space is an instrument of this policy. The projects related to National Missile Defense or the Revolution in Military Affairs (RMA) provide specific examples. Military measures of prevention and deterrence receive priority status because they allow the development of technological advances. Such advances are necessary to have the upper hand in any arms race but also because military involvement in regions that are geographically far away and national military casualties are repugnant to American culture. The concept of ‘zero dead’ is well known. Its proponents advocate reducing the use of ground forces and thereby sparing American lives, but by the same token, this tends to place the burden of all casualties or losses, including those of civilians, entirely upon the opponent (the famous ‘collateral damages’). The United States also seeks to ensure the ubiquity of its military supremacy, both in terms of geographic areas and in terms of responses to various threats—classic armament, weapons of mass destruction, guerrillas wars and, henceforth, terrorism. The United States is the only country that intends to be ready to intervene everywhere and to face any type of military threat. This task absorbs considerable resources, human and financial, and the United States is clearly the only state that is capable of assuming such a burden. It maintains a military capability that it, of course, prefers not to resort to but that allows it to bring an overwhelming force to bear against any potential enemy. This military capability represents an essential political instrument. It also renders less compelling any argument regarding the declining importance and even disappearance of military force as a criterion of power after the fall of the USSR. The United States is aided in its policy of supremacy by the conduct or demeanour of other states, many of which, especially in Europe, have

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considerably reduced their military budgets and ambitions or have limited resources. The US Army forms and trains an increasing number of foreign armies. The United States also benefits from all the legal instruments that limit the arms race or even completely prohibit certain categories of arms. While it is true that the constraints are not accepted by all, those states that refuse or reject them in total or in part (such as India, Israel, Pakistan and certain Arab countries) and those that could circumvent them (such as China, North Korea and Iran) are not in a position to rival the United States or its allies militarily. The fate reserved to Iraq is evidence of a constant vigilance in this regard and testifies more generally to the efforts to ostracise the governments that are designated as rogue states. One cannot ignore the reality that any military intervention is at the outset a political failure or defeat, because it means that deterrence did not work or that the conflict or crisis could not be avoided. Thus, US reluctance to engage in military actions is as marked as their capability is impressive. This universal military supremacy does not translate into a universal approach but rather into a regionalised vision of international security. Globalisation has little meaning in terms of security. Consequently, universal mechanisms such as those of the United Nations and the Security Council, even as revisited by the Agenda for Peace and the Supplement to the Agenda for Peace, are discarded in favour of regional coalitions. For reasons not entirely related to American policy, the undefined competences of the Security Council have been reduced to legitimising actions that are undertaken by individual states and under those states’ responsibility, although these occur primarily at US initiative and in US interest. To a large extent, the peaceful dimension of UN actions, in terms of maintaining and sustaining peace, tends to rely on regional coalitions or organisations (and even on individual states within the region in question), and this is done without resorting to Chapter VIII of the Charter, which would indeed imply closer control by the Security Council. Furthermore, on a permanent basis, the regional military command of the United States exercises a strategic surveillance and at times even plays a quasi-diplomatic role. Regionalisation in no way contradicts American hegemony. It is in fact an instrument of this hegemony, and this can be explained as follows. First, regionalisation allows the United States to circumvent the potential veto of other permanent members of the Security Council. Second, it hinders the formation of coalitions that might challenge universal US domination. Finally, the United States knows how to place itself at the heart of such regional groups and how to render itself indispensable to their efficiency. The United States can thus play a more removed or reduced role but is always key, because only it can assume that role. The framework of regional powers that was cherished by Henry Kissinger no longer exists. From an American standpoint, there should only be small powers in terms of security, which depend in varying degrees upon the assistance and control of the

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United States. In this regard, it is not very significant that there be preexisting institutionalised alliances such as NATO. They do offer the context for discussions and predetermined decisions. However, they can also become a constraint on hegemonic power, precisely because they imply a certain control of its action by allies. Much more preferable for the United States is the constitution of special ad hoc coalitions, which are adapted to specific problems, to given territories and do not entail protracted involvement. This was the case during the Gulf War, which demonstrated in passing that Western Europe remained dependent on the United States for its provisions in oil. This was also true for the intervention in Kosovo, even if NATO was put in the limelight, and in the aftermath of September 11, since the proclaimed solidarity of NATO has remained inconsequential. The regionalised approach of the United States at times involves tradeoffs. We shall mention three here. On the one hand, the coalitions that are constituted by American diplomacy come at a price, which can entail drastic political changes and even some contradictions. For example, if it is necessary to rely on erstwhile opponents, it sometimes becomes necessary to waive sanctions that were previously imposed or to tolerate types of conduct and attitudes that are contrary to principles promoted elsewhere. Among other things, there is then the risk of upsetting other partners. We could call this diplomatic opportunism. On the other hand, such coalitions are fragile, and if the United States has special skills at forming them, it cares little about maintaining them and even contributes to destroying them rapidly. Such was the case, for instance, after the Gulf War, when the United States retained an ambiguous in-between status, and the Iraqi regime was not overthrown but remained a permanent target. Finally, the regionalised approach means that crises and conflicts are not fundamentally resolved but only addressed provisionally, as if the primary concern of the United States is to reduce their intensity and moderate them but not settle them. This has been the case for American policy in the Gulf, for the Arab–Israeli conflict, for a series of conflicts in Africa and—even in Europe—for the Balkans. The US role as moderator is irreplaceable, and international security would suffer deeply in its absence, but it again implies management rather than solutions to contradictions. It is possible to read into all of this a sign of weakness. Perhaps the lack of strong solutions indicates the inability of the United States to conceive solutions on the merits or to make the parties concerned accept substantial solutions. More cynically, however, we can also consider that the absence of durable solutions is not necessarily unpleasant for the United States. The lack of durable solutions maintains areas of tension, which do not threaten the United States but do constitute a threat to the region and lead the states concerned to maintain a certain degree of modesty, since it is then always necessary to maintain American involvement. However, such persistence is

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potentially dangerous for the United States itself, since violence could resurge in unexpected and uncontrolled ways, even directly affecting the United States. The events of 11 September 2001, which were allegedly masterminded in terrorist bases in Afghanistan with, at minimum, the tolerance of Kabul authorities (and perhaps even their help), testify to inadequate or inaccurate evaluation of the risks and threats that are produced by the persistence of internal conflict. How can the tolerance or prolonged underestimation by the United States of movements that did not seek to hide their hostility be explained? Possibilities include a concern to treat certain states of the region tactfully or delicately, or an objective lack of interest for a conflict that seemed to be on only the fringes, or the fact that the cost of putting an end to such movements was perceived to be too high. In the final analysis, it was the cost of a wait-and-see policy that was too high. Afghanistan has consequently all of a sudden regained a central role, in Mackinderian logic. For each region under consideration and for the strategic situation as a whole, this regionalisation, if it is controlled, leads to an equilibrium or balance, because no state or group of states can acquire, even regionally, a dominant position. An equilibrium, it is well known, is not established or maintained automatically. It requires a guardian who remains the ultimate warrantor and whose involvement can if necessary help to re-establish the equilibrium. Equilibrium is therefore a technique of hegemony. Equilibrium can help to ensure the maintenance of hegemony at an optimal cost, since it takes advantage or makes use of regional forces: by dividing them, by making them oppose one another if need be or by being their only unifier. Equilibrium therefore allows a management of hegemony with an economy of means. The exact form this approach to security takes depends upon the specific nature of each conflict or situation, but—and we shall come back to this—it excludes a great design and firming up of peace and security. It is at the same time selective, and the involvement of hegemonic power occurs only when its national interest is at stake. We are here at the polar opposite to the altruistic dimension that is a part of genuine leadership. iii. Economic Domination It is important not only to understand the meaning of this dominance but also to place it within an appropriate historical perspective. In purely quantitative terms and without even taking into account the recent tribulations experienced by the American economy, US dominance has greatly declined since the period following 1945. At that time, the United States produced an important part of the world’s gross domestic product (GDP). Since then, the European economy, the Japanese and other industrialised Asian economies and those of emerging industrial powers have made up much ground, and their per capita incomes have progressively come closer to that

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of the United States. This is the most brilliant and uncontested result of the European construction. Furthermore, the American economy lives largely on its own funds and is less dependent than other economies on export. On the monetary level, the role of US dollar has also experienced a relative decline. As compared to the period following 1945, it is no longer the only currency used for international reserves. The initial stages of the euro have been less convincing than expected, but it nonetheless constitutes a zone of financial stability that seems likely to be less dependent upon the variations that pertain to the US dollar. Finally, at a time when increasing poverty for a large part of humanity constitutes one of the greatest problems of this era, the American economic model has not, any more than other models, been able to furnish a recipe for developing economies to substantially improve their lot. To this we add the fact that the economy, in the American conception, is largely the business of private actors that are part of civil society, rather than the business of the state. Transnational firms, however, do not have as their objective the pursuit of national objectives. Their goal is simply to develop their activities, their profit and even their own individual power. While developing global networks of economic relations and endeavouring to open up markets, transnational firms tend to delocalise employment spontaneously and homogenise working conditions in different countries. In the context of a globalised economy, which is one of the dominant themes of the last decade, these firms seek to escape any form of public regulation, whether it stems from institutions within individual states, from an individual state itself or from a multiplicity of states. This is done simply to attain their own objectives. The end result is a tendency for international relations to become privatised to some extent. Is it not therefore illusory to speak of the economic dominance of a specific nation-state, if the control of the principal elements escapes it in favour of private actors that have become stateless and that evolve in a global market without worrying about the priorities and the constraints of the states? Is the United States not at the head of this process of dispossession, which is in conformity with its economic philosophy, which it attempts to spread beyond its frontiers? This last observation marks just as quickly the limits of the privatisation and transnationalisation of economies. These processes are in no way spontaneous, even if they rely on the dynamics of private actors. They need to be initiated and supported by public authorities, and as such, they partake of an economic policy deliberately pursued. In general, states remain in charge of security, both internal and international, and security always conditions economic activity. States also retain, either individually or through international mechanisms (as in the case of the euro), control over currencies and the regulations that govern exchange, such as those that govern investments, credit, etc. From this standpoint, a dominant economic power has at its disposal means that are

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very efficient both for the regulation of its own economy and for the negotiation of interstate regulations, including those that are indispensable to the operation of the free market. Thus the economy, and especially the international economy, cannot be disassociated from public policies. It falls within the province of political economy—international in this case. Even more profoundly, it is affected by a cultural dimension, which leads back to the national conception of economic models. There exists an American model that rests on capitalism, free enterprise and the market, but this model differs markedly from European capitalism and Japanese capitalism. These latter two economic models have traditionally been more closely controlled or managed by the interventionism of public authorities and more influenced by social concerns. But it is the American model that the United States has successfully promulgated, at least within the developed world. The American economic model could be summed up by a few elements, the first being the marketisation of exchanges. This means that all international exchanges are analysed in economic terms, even in terms of profitability; in contrast, elsewhere some exchanges are considered as deserving to be exempt from this reductive logic, such as sports, cultural exchanges and even the military sector. It also follows from this aspect of the American model that the value of an enterprise is limited to its profitability, which nurtures a capitalism of shareholders. To paraphrase Oscar Wilde, the American conception of worth reduces the value of everything to its price, which is likely to offend European sensitivities. While the first element is purely economic, the second element is a tendency to internalise the international currency, that is, to consider the US dollar as first and foremost a national currency, no matter what its international role is; consequently, its management depends exclusively on the interests of the American economy. This is a component that is more directly political, since it tends to make the international economy dependent upon national decisions. American monetarism has thus willy-nilly been progressively universalised. The third element, which is somewhat cultural because it is borne not only by public authorities but also by civil society, is the idea that this American model possesses a universal value and that following the classic formula, what is good for the United States is good for the entire world. We find here the basis of a voluntarist policy that promotes globalisation, which is largely conceived as the universalisation of American values. The globalisation that results from the liberalisation of exchanges has been a constant objective of American foreign policy for a long time now, and because of the collapse of command economies, it no longer faces any ideological or doctrinal opposition. Only those developing countries with market economies are capable of organising the regulation of international economic exchanges, and American universalism conflicts in this regard

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with European regionalism, with varying levels of success: success with the WTO, but failure at the Summit of Seattle in 1999 and failure with the projected Multilateral Agreement on Investments. The United States has nonetheless an economic policy that is stronger than its own economy, and in this regard it takes advantage of its hegemony. It resorts to an entire range of diplomatic techniques that we have previously mentioned: multilateralism, regionalism, namely on the inter-American level, but also unilateralism with a strong policy of countermeasures against states that do not agree with US interpretations. The oppositions between states are not ideological in nature anymore but rather founded on a narrow logic of interests. There remains an objective limitation to globalisation, with problems that are characteristic of developing countries being ignored or minimised, because their aptitude to make themselves heard has considerably diminished within the new international context. But the objections and questioning arising from nongovernmental organisations (NGOs) belonging in international civil society have already replaced it to a certain extent. This leads us to a final observation, one that pertains to the relationship between US economic dominance—less weighted in any case than American military supremacy—and what we conventionally call civil society. Speaking of business enterprises, it is clear that their transnationalisation has not changed the fact that they belong primarily to national economic spheres. There thus exists a symbiosis between the interests of American firms and public authorities. Globalisation does not lead, for instance, to an international social law, but it goes hand in hand with the concern not to let developing countries take too much advantage of a low level of income and social security. However, the spectacular and rapid growth of the transnational anti-authority movement, which manifested itself in Seattle in 1999 and in Genoa in 2001 on the occasion of the G8 meeting, has tended to displace international relations towards new actors. It is true that this movement concerns the developed world in its entirety, not only the United States. However, to the extent that the United States is a driving force in the developed world, it finds itself at the forefront of this contestation, since globalisation is to a significant degree an economic, and as a consequence, a cultural Americanisation. We shall come back to emphasise the reach of this protestation, but we must first outline the ambiguities of American hegemony.

B. Ambiguities The ambiguities of American hegemony are, in the first place, constitutive of hegemony itself, to the extent that a hegemonic power seldom acknowledges its own hegemonic nature and rests on an uncertain mixture of interventionism and disengagement. These ambiguities also pertain to its origins, its purpose and its stability.

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i. An Inherent Ambiguity Hegemony does not rest on a ‘grand design’—on some organising project rationally conceived. An illustrative example is the fact that at the time of the Gulf War, President George Bush Sr announced a new World Order (which remained a lettre morte), but President George W Bush after September 11 did not announce anything of a similar nature. It is important in a way to manage power with an economy of means, without any major changes, especially in the institutional order. It is true that we resort in an opportunistic manner to existing institutions such as the United Nations, NATO and international financial institutions, but they represent the instruments rather than the framework of the reforms—and minimal instruments at that. The time is gone when the UN General Assembly provided a matrix of ambitious projects, such as the New International Economic Order, the New Food Order and the New Order for Information and Communication. We are even further away from the spirit of the founding decade post-World War II, which saw the birth of not only the United Nations, but also the Marshall Plan, NATO and the principles of community construction upon which the institutional and planning heritage of international society still relies. The end of the East–West confrontation and the disappearance of the Soviet Union and the socialist camp in certain respects began a new post-war era, propitious or favourable to ambitious reorganisation. Instead, we have prolonged and developed the old formulas, even if it is done in a new spirit—thus the enlargements of NATO and the European Union, as well as the transformation of the General Agreement on Tariffs and Trade (GATT) into the WTO, have taken place in a spirit that is not very favourable to strengthening international organisations. From this standpoint, we can consider the last decade of the twentieth century, that of President Clinton’s administration, as a lost decade. A random case-by-case approach, a wait-and-see policy and opportunism have prevailed over great concepts and great projects. Indeed, we can see in this a consecration of the neo-realist approach, which mixes a traditional concern for national interest with the promotion of multilateral regimes and the common or shared management of problems of general interest. We can also see in it a slip or shift away from security problems to economic issues and the opening of markets—and the events of September 11 brought home the consequences that might result from such a shift. Economic issues by definition are less spectacular, relying, in the American conception, on public institutions shying away from a more active role. But the United States has not done anything decisive with what an American author called ‘the unipolar moment’, which left it with an important margin to develop new organising principles for international relations. Others may not have done any better, but the power of the United States and the dominant role that it claims as the ‘indispensable nation’ gave it and it alone the capacity to possibly do so.

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Such cautious opportunism also characterises hegemony and its vacillation between leadership, which it uses at times as a mask, and the nostalgia that it feels for an isolationism that is impossible—leadership here refers to the need to respond to certain demands, to maintain some solidarities and to form coalitions, while isolationism refers to the priority of maintaining the singular and unique position of the United States and to the utmost liberty of action. A consequence of this ambiguity is that hegemony often evinces its power through denial. The aim is to prevent the rise of adversaries or even independent powers. In this vein, we can mention, in no particular order, the following policies: the restrictions on the export of sensitive technologies that could foster military and/or even economic rivalry, as well as the sanctions imposed on countries that ignore these restrictions; the efforts to control the evolution of China, whether it be referred to as a rival or as a strategic partner, and to lead against China a new form of containment; the efforts to limit the autonomy of the European Union in terms of security and defence; the efforts to reduce the role that the Europeans might play in the Middle East and to allow them to contribute only financially. In short, the aim is to maintain everywhere control over external evolutions, and this by means that are specifically adapted to that effect. In economic terms, it is mistrust for any regional coalition that organises preferential exchanges among its members and is capable of increasing their collective economic power. In terms of nuclear strategy, we can pose that a constant objective of the United States is to become the only nuclear power, by making impossible the eventual use of nuclear power without its consent. The aim is also, in a complementary way, to limit external involvements. Responsibilities within the Security Council are exercised in a discretionary fashion. NATO does not signify any automatic assistance, no more than it comprehends a say by European members in American defence policy. Military actions give preference to air bombardments from a high altitude as compared to land engagements. The latter is always conditional and is utilised only when the possibility of withdrawal is ensured. Significant losses usually lead to disengagement, as in Lebanon or Somalia, and the memories from Vietnam are still present. The United States is also reluctant to enter into a policy of nation-building, that is deemed as whimsical and too costly. The consequence of all this is that hegemony is a fundamentally conservative policy. This is to be contrasted with leadership, which aims at uniting actors around one or more important projects. Hegemony is thus to a certain extent a defensive policy. Perhaps this testifies to an uncertainty about the real power of the country, which explains the inclination to use that power sparingly rather than to test it through assertive initiatives and bold policies. Would it not be then the sign of a certain relative decline of power and a management of domination, as well as of national interests, with reduced means? Was the Gulf War not financed in part by Germany and Japan? That would be a relative decline, in any case, because American

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power is today greater than in the 1970s and 1980s, a period during which the country was undergoing the economic and diplomatic consequences of the Vietnam War and of the ongoing challenge from the USSR, as well as to a lesser extent, from certain developing countries. ii. The Origins, Purposes and Stability of American Hegemony When speaking of the origins of hegemony, it is appropriate to distinguish between domination as an objective, observable situation and hegemony as a policy or attitude. We shall here discuss only the latter. Several questions could be raised in this regard. Are we in the presence of a choice or a constraint? Is this a hegemony of supply or a hegemony of demand? A concrete way to answer these questions is perhaps to distinguish between the external origins and the internal origins of hegemony. In relation to foreign origins, some contend that the United States is by dint of its objective power ‘bound to lead’, as Joseph Nye puts it. Some also evoke, with Ghassan Salame, the ‘call for an Empire’, meaning the appeal that foreign domination possesses for countries or regions that fall prey to disorder and have lost any hope of finding solutions to their problems on their own. This last explanation emphasises that the peoples—as well as the individuals—who aspire to freedom are rare. Domination, preferably benevolent in nature—and the domination offered by the United States readily presents itself as such—seems a preferable alternative to many, because it frees one from the concern for security. The temptation to be taken care of by an elder brother is often strong. Numerous and diverse states aspire to become the best possible allies of the United States. The common denominator to both explanations is the belief in American capability and the confidence that the role of the United States is always a positive one. But the policies that result from leadership and empire, as we saw, differ from those of hegemony. Hegemony offers an inadequate response because it assigns client status when the countries aspire to be partners, and the United States rejects any idea of egalitarian relationships. Other states may hope for and expect American leadership, but the United States does not generally intend to get involved, and when it agrees to get involved, it is only under its own unilaterally defined terms. However, hegemony can nonetheless be supported by powers that see in it the means to escape a domination that is closer to them, and they thus play the protection of world power against the leadership of regional powers. We could explain in this way the enthusiasm of many counties in Central Europe towards NATO and their lukewarm attitude vis-à-vis any collective European security and defence arrangement. As to the domestic origins of American hegemony, several explanations could be offered. Some have maintained that the very rapid ascent of the United States corresponded to deliberate American design and that the

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Cold War, for instance, was provoked intentionally to utilise the USSR as an opponent, thus making easier the assembling of clients around the great democracy. Hegemony would thus be one variant of imperial design, an extension of American Manifest Destiny. Others, in a rhetorical fashion, see in it a prophetic grace that rewards America’s virtue and altruistic attitude, which would replace the corruption and violence of old Europe. In any event, these explanations once again pertain less to hegemony in particular than to domination in general. More realistic, even if their ideological dimension cannot be ignored, is the role of internal lobbies, namely the diasporic communities that are determined to defend the specific interests of their respective countries of origin or those who call for a preferential type or support—eg, Israel, an unfailing ally, countries of Central Europe, candidates to NATO—or those whose regimes must be fought, such as Cuba. Some explain why France has so little influence within the United States in this fashion: it is due to the absence of a significant minority population of French origin there. But this component of internal origin is not peculiar to the United States, and Tocqueville himself noticed that democracies tend by nature to settle external questions by using motivations that stem from the inside. Furthermore, it is classic that a dominating power internalises international problems. Its solution becomes a matter of internal policy for the hegemonic power, if only because it is that power which possesses the largest number of options and the greatest degree of freedom to implement a solution. Such an origin is only partial, because it overlooks the American genius for integration. Even though the American people are composed essentially of descendants of immigrants, its national loyalty is very strong, as we saw in the aftermath of September 11. Furthermore, a certain number of immigrants have left their country because they did not want to stay anymore, and they have no other solidarity there except that pertaining to family. It is possible that the melting pot in its traditional form is not functioning anymore. Yet this does not prevent the country from integrating very diverse groups without internalising their conflicts (probably with the exception of support for Israel). This also minimises the capacity of the institutional apparatus to define and to advance its conception of a national interest superior to the weight of each particular lobby. The United States is usually taken to task for ignoring the outside world and the situations specific to each region or country, rather than for being too closely attached to them. On this level of definition of national interest, an important origin of American hegemony is found in the open or hidden competition between Presidenct and Congress, and in the duality of federal power in the United States. By the very nature of the separation of powers, the President disposes of the initiative and is more likely to have a comprehensive understanding of international relations than Congress; in addition, the President is less dependent on internal constraints. The powerful ascent of the

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President has rested historically on the conduct of foreign relations, and it is often the case that the President’s foreign influence is larger than his freedom of action for domestic matters. The powers that Congress can exercise over external affairs offer more possibilities to prevent than opportunities to define positive policy. But the exercise of powers of the President and the efficiency of Presidential policies depend largely upon support from Congress. Thus, before the 1991 Gulf War, authorisation from Congress for resort to force was both more difficult to obtain and more decisive than that which emanated from the UN Security Council. The US Congress is also more susceptible to the influence of domestic lobbies, as well as to multiple and frequent electoral concerns. It is therefore inclined to focus on matters that affect the United States more directly, to minimise the interests of other states and to limit external involvements, as well as their military, financial and economic implications. In short, Congress tends to emphasise all the negative aspects of domination—those aspects that make it coincide with hegemonic policy. It is thus that American hostility towards the United Nations and the rejection of diverse multilateral treaties, including those initiated by the United States, usually stem from Congress. The precedents of the rejection of the Treaty of Versailles and the League of Nations weighed very heavily on the catastrophes of the twentieth century. At its core, within this oxymoron of leadership and isolationism that constitutes hegemony, the leadership component belongs to the Presidency, and the isolationist component belongs more to Congress. As to the purposes of hegemony, they necessarily have only a tentative character, since they do not present themselves as a defined and constructed design that results from a collective will. Even if we suppose that this is the case, we should not take it at face value, because a purpose that is invoked might only amount to justification. To say that a hegemonic policy aims at pursuing the national interest is tautological: whenever a nation exists, it cannot do other than pursue its interest. The existence of an interest properly attributable to the nation, distinct from that of the individuals and groups that comprise the nation, is indeed a criterion of an organised and independent collectivity. Thus we can wonder whether there exists an interest of the European Union distinct from that of its Member States. There is no doubt, however, that an American national interest does indeed exist, and it is very regularly invoked by public authorities to support their decisions in the international arena. There exists a multiplicity of ways to conceive and promote this national interest. Hegemony corresponds to a vision in the short term, to the extent that it does not correspond to any great design or to a holistic vision of international society, its general problems or the solutions that they call for. This corresponds to its conservative and defensive characters: its only business is in the end to preserve itself and to ensure its perennial character, and this

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can be accomplished by seeking to prevent the appearance of rival powers and coalitions. Hegemony aspires to maintain its own stability, as contrasted with objectives of reformation, which tend to organise their own transcendence by mere virtue of realising themselves. This is the case, for instance, with the European construction. However, is a hegemonic stability possible in the long term? Hegemonic stability is subject to both domestic and foreign conditions. The former are dependent in the first instance upon central public authorities and their ability to define a unique and continuous policy. For the United States, we know that federal institutions have recently seen their authority challenged by local powers. Individual states within the federal union have attempted to develop their own international relations, sometimes in the name of ethical considerations that are less prominent at the federal level. The Supreme Court has marked the legal limits of such activities, and the events of September 11 led the Bush administration, which had looked favourably on the strengthening of powers for individual states, to return to a more classic conception of the supremacy of the federal state in these matters. The conditions for the stability of hegemony rest also on the formation of the political elite and the extent of their knowledge or information in matters of foreign relations. Frequently emphasised are the flaws of American officials, whose ignorance of the outside world is matched only by their indifference, albeit with a few exceptions. Hence the tendency to consider international relations first and foremost in terms of the security of the United States and its economic prosperity; and also the inclination to be reactive rather than active, to consider the external world only from the viewpoint of the control that the United States can have on it, to resort readily to coercion, to criminalise any behaviour that the United States does not like, and to apply a double standard regarding its internal respect for the rule of law on the one hand and an international attitude that is only moderately concerned with international law on the other hand. These inclinations lead to the international conditions for the stability of hegemony. It is not surprising that hegemony gives rise to protestations or challenges; it is probably part of the very nature of hegemony to be contested. The question then is one of the nature and efficiency of such protestations or challenges to hegemony.

III. Challenges to Hegemony The theory and reality of hegemony are subject to challenges of different types, and it is necessary at the outset to distinguish among them. We need first to consider the different types of challenges on an intellectual or doctrinal level. They have in common the fact that they all consider the concept of hegemony to be inappropriate and take the view that it does not

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reflect or properly explain contemporary international relations. This intellectual contention tends to negate the pertinence of hegemony as a basis for analysis. A first line of thought, which is traditional to the extent that it does not challenge the idea of an international society dominated by states and by interstate relations, takes the position that American hegemony cannot be the organising principle of contemporary international relations because in reality their organising principle is resistance to this hegemony. A second line of thought, more radical, comprises a structural questioning of classic state-centric analyses. According to this view, globalisation and the explosion of the role and influence of private actors in international relations— transnational firms, NGOs, minorities and diasporas, but also organised crime and terrorist movements—have led to the transformation of the very structure of international relations, so that any state’s hegemony no longer has as much force. The events of September 11 demonstrate this, but so also do the anti-globalisation movements and those militating for human rights, disarmament and protection of the environment. States are thus surpassed and overwhelmed, and a new international society, which is more complex and more diverse—in short, an international civil society—is in the making. We next turn to evaluating these different analyses and theses.

A. Traditional Modes of Contention: Resistance to Hegemony This resistance to hegemony stems from states or groups of states and in a traditional logic, which is more or less inspired by ideas of equilibrium and balance, opposes itself to the stabilisation of hegemony as we have described it. We can distinguish three variants of this sort of resistance. The first refers itself to a diffused contention, because the states as a whole cannot durably live under subjection, a subjection that the United States in any event does not have the means or the intention to maintain. The second variant speaks to a more precise hostility, which stems from states that not only refuse to accept this form of domination but also reject the values and principles in the name of which the hegemony spreads itself, as well as the means to which it resorts. Finally, the third variant pertains to the states that are allies of the United States—its partners—but that can suffer the yoke only with impatience and wish for the relationship to evolve toward more equality, towards a leadership that would entail for them a more extended and autonomous role. The three variants overlap. However, each one has its own logic, so that they are rather fragmented and possibly even contradictory; this does weaken them. i. Diffused Contention This first variant of resistance to hegemony is grounded in the limits of US power. It does not characterise a clearly organised school or doctrine, but we can synthesise it around a thesis of ‘decline’, which takes the position

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that US power has in reality known a relative decline. The hegemonic temptation itself is a symptom of these limitations, because it implies domination at a lesser cost for the power in question, without an organising project, fundamentally defensive and bringing at the end its own negation. The economic power of the United States is considerably less than it was half a century ago, and so is its aptitude to impose rules that it deems appropriate. Its technological advances are often overestimated. Its cultural supremacy does not create a particular advantage for the state, and historically, a phase of cultural domination by a particular state has often preceded its political decline. The military supremacy of the United States is not necessarily a good sign, because it comprises heavy loads from which others can free themselves or from which they benefit. Furthermore, Soviet power in Europe did not prevent the collapse of the USSR. The American political model is not necessarily fit for exportation. Numerous states, for example, resist the universalisation of human rights, and those that accept them do not necessarily share the American conception of them. Let us think, for instance, of the death penalty, of the right of individuals to carry arms and of religious liberty when it protects sects. We also observe that the United States has encountered more and more difficulty in making its viewpoint prevail in international matters. Its unilateralism could be interpreted as a technique of protection against the outside world, such as when it rejects or refuses to participate in common international regulations or institutions—thus, the non-ratification of the CTBT, the rejection of the Ottawa Convention on the prohibition anti-personnel mines, the opposition to the International Criminal Court and the rejection of the Kyoto Protocol. All this has not prevented these treaties from being adopted by international conferences at which the US viewpoint did not prevail. US control over the United Nations has also weakened, as indicated by the American defeats in relation to recent elections to the Commission on Human Rights. The American willingness to free itself as much as possible from the constraints of multilateral processes, even within the Security Council, might well be another sign of this. The dominant conception of US national interest, which is more and more narrow, limits its audience and creates a climate of mistrust vis-à-vis the United States. The coalitions that it can form are fragile and temporary. It remains true that numerous states aspire to be considered as friends and allies of the United States, as an amalgamating power, but this is a function of national egoism, in the sense that such states expect appropriate reward. This could make hegemony too costly for the United States and, as a consequence, cause hegemony to fail as a form of low-cost domination. There is nothing organised or deliberately concerted in this diffused form of contention, which might even be latent. However, for numerous states hegemony is merely supported rather than accepted. We are unable to identify these states or count them. The developing world has politically

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disappeared, the influence of any Non-Aligned Movement has vanished, and the latter seems not to have any real purpose anymore. Nonetheless, the political, economic, social and cultural realities that these parties symbolise are still present. Rare are those who expect in any real sense the collapse of the United States. However, we should not hide the fact that behind the horror and condemnation that the events of September 11 provoked, there also existed in many countries a secret feeling of satisfaction as to the revealed vulnerability of American power. At the same time, the capacity of the United States to retaliate effectively has been scrutinised with utmost attention, and a certain wait-and-see approach is prevailing. We observe that no conflict is settled in a substantial manner and that international insecurity is spreading in vast regions of the world—and let us not even evoke the issue of economic development. The United States either cannot respond to all these challenges on its own or lacks sufficient interest to get involved. If we add up the limitations to American power, then together with the diffuse and multifaceted contention that the United States faces, American hegemony does not appear to be certain or stable. ii. Adversarial and Hostile Challenges The second variant of resistance to US hegemony is more openly hostile, at least toward certain American methods or positions, and this hostility translates into specific and identifiable behaviours. It can stem from large states that are interested in conserving, in addition to their own freedom of action, a zone of influence for themselves, as well as from small states that the United States itself refers to as ‘rogue states’. Contention by large states is essentially Asian and has to do with the rapidly developing demographic giants China and India, who have also asserted military ambitions. Their situation is very different, and we can here only sketch a rough comparison of their relationships with the United States. They do not accept a subordinate status on the political level; they intend to freely increase their military capabilities; they ignore the NonProliferation Treaty (India) and the constraints that the United States would like to see enforced in relation to transfers of sensitive technology (China). It is difficult to defy the United States head on, and the attitude of these states is ambiguous. Particularly on the economic level, they can seek privileged partnerships, but they can also adopt challenging attitudes on military and strategic levels. Furthermore, it is also possible for the United States, within a balance of power framework, to pit them against each other and play on their rivalries. But this in itself reminds us that American power has always been faced with Asia, which unlike Europe and the former Soviet Union, represents for it a challenge that has not yet been overcome within its own sphere. Furthermore, these entities are so diverse, so divided and so populated that they are also the most impervious to the expansion of

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American values and modes of life. It was necessary to resort to the nuclear arm in order to defeat Japan, the war in Korea led to only a partial victory, and the war in Vietnam was the only military defeat that the United States has undergone in its entire history. Many observers consider that the fate of American power will be played out in Asia. ‘Rogue states’ of course do not define themselves as such; this infamous label is attributed to them by the United States. The ‘rogue states’ are therefore a sub-product of a hegemonic policy, since they are designated as the ‘bad students’, delinquents or offenders, who dealt with in a semi-criminal way within international relations. They are very heterogeneous and can be hostile to one another. They have in common the fact that they are objectively weak, but they nonetheless possess, or are perceived to possess, the capacity to harm. From an American perspective, these states include Cuba, Libya, Iraq, Syria, North Korea, Iran, Serbia, Sudan and Afghanistan. The category is open and fluctuates in a manner that is, to a certain extent, whimsical. To the list we could add Pakistan, which might be considered something intermediate between a ‘rogue state’ and a great Asian power. Often subject to dictatorships or in any event non-democratic regimes, ‘rogue states’ are suspected or accused by the United States of openly or secretly rejecting prohibitions regarding weapons of mass destruction, of supporting, encouraging or tolerating international terrorism, and of organising or tolerating other criminal trafficking. American policy consists of explicitly identifying such states, keeping them apart from regular international exchanges and, if the need arises, resorting to coercion against them—collective coercion if possible, but unilateral if necessary. Pressure is thereby indirectly exercised against other states, which are invited to comply and which might suffer sanctions if they refuse to do so. The type of challenge represented by hostile states is at the same time both a sub-product of and a countercheck to hegemony. In the current context, it is not very effective and does not correspond to an organised hostile coalition. We do not find in it a resurgence of the defeated parties of the Cold war, and the likelihood that there might develop a strategic triangle comprised of China, India and Russia is very uncertain. These countries have only limited support within their own respective regions, and ambitions on their part might serve to reinforce the appeal that the United States exercises. Even if their contention does not permit us to conclude that resistance to American hegemony is the organising principle of international relations, such contention helps to mark the limits of hegemony as well as the difficulty in entrenching it in some sort of general acceptance. iii. Challenges from Partners The third variant of challenges to hegemony is the most ambiguous, because it emanates at times from states that have alliance ties with the

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United States—ties that they do not envision untying. It also stems at times from states that would like to establish such ties. This is the case for Western European states on the one hand and Russia on the other hand. For the countries of Western Europe and for members of NATO, the European Union or both, the transatlantic relation, which is more than fifty years old, remains important, and no one intends to break it. Although its significance has profoundly changed, a new purpose has not yet been settled. Western Europe lived under an American military protectorate throughout the East–West confrontation period. The disappearance of that confrontation has rendered the military protectorate no longer necessary but has not made it go away. This reality is today founded not on an external threat but rather on the inability of the members of the European Union to agree amongst themselves on principles for a common foreign policy or a common security policy to support it. American hegemony can thus continue to spread by default. Undoubtedly, the United States does not do anything to facilitate the development of the European countries; in fact it might sometimes tend to put hurdles directly in their way. But we cannot take this as an excuse to justify the deficiencies of European countries, which were demonstrated by the conflicts in the former Yugoslavia and the Middle East. NATO, under American auspices, has compensated for these deficiencies in Europe, and the United States has had a free hand in the Middle East because of the diminished European role. Certain European countries, France in particular, wish to transform this relationship of subordination into a real partnership, which would allow more responsibilities and autonomy for the European entity. As Plutarch put it a long time ago, ‘The first and foremost law of nature is that one who cannot preserve and defend itself, subjects oneself to those who have the means of doing so.’ For a while, we could think that the United Kingdom had made a step forward in this direction with the declaration of Saint-Malo in December 1998, which led to expectations of a military pole animated by the major European Union countries. However, these prospects were quickly swept away by the conditions under which the intervention of NATO members took place in Kosovo (Spring 1999), as well as by the complete alignment of Great Britain with the United States in the military operation against Afghanistan in the fall of 2001. It does not matter much whether the formation of a European military pole develops within NATO or outside it, given that the United States prefers to resort to ad hoc coalitions and to leave NATO aside whenever it finds it suitable. The admission of new EU members further complicates the situation, since in terms of security, they clearly prefer dependence upon the United States as compared to European autonomy. Their aim seems to be combining the security brought by the United States with the prosperity implied by economic solidarity with the European Union. However, we can venture that the interests of Europe would be best served by creating the conditions and instruments of their own common

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security. Furthermore, such distance vis-à-vis the United States is in the natural order of things. The vulnerability of its territory, revealed in a brutal manner by the events of September 11, will mean that US efforts and means will be concentrated on their own security, and its ability to guarantee the security of countries that are separated from itself by an ocean and that do not necessarily incur the same threats is therefore bound to diminish. The instability and insecurity of the Balkans are right at the boundaries of the European Union, which has been unable to export to its fringes the structural peace that it has entrenched among its members. If Europe cannot see to it that the Balkans become ‘European’, it runs a great risk of itself coming to resemble the Balkans, given how enlarged and stretched it is. In this context, it is dangerous to count on additional American involvement or to rely on the United States for the security of the entire European entity, especially because Europe is an increasingly fierce competitor in economic matters. To think that Europe as a whole could become a big Helvetica confederation, remote and protected from external tensions and conflicts, is chimerical. Disarmament cannot be the appropriate response either, when security, both internal and external, is not ensured. We touch here upon one of the contradictions of hegemony: preserving hegemony presents difficulties for the United States because it cripples Europe and makes it live in false security. However, surmounting such difficulties would mean an evolution into more of a partnership, which supposes that the United States will consent somehow to go beyond this form of domination and that it will encourage such a change. Such an evolution supposes the invention of a new modality of leadership, one that would require a more long-term conception of national interest and more altruism. Sharing the burden cannot be conceived only in financial terms. From the European side, this requires also an awareness of a common interest, which currently is still largely missing, even if the need for it is vaguely felt. The options are either to risk departing hegemony ‘from the bottom’, with increased insecurity and loss of control, or to remove it ‘from the top’, with the establishment of a more balanced partnership that is organised through more enlightened American leadership. As for Russia, it lives in the nostalgia of the strategic partnership that characterised the joint management of nuclear deterrence, which took place through bilateral negotiation and treaties pertaining to armament control. This strategic partnership no longer exists, and having consented to its own abdication, the former Soviet Union now obviously wishes to renew the partnership, which would preserve a role for it in world affairs and a place in Europe. Joining NATO might be one way to accomplish these aims, as might a reinforcement of the Organization for Security and Co-operation in Europe (OSCE). However, the rapidity with which Russia came closer to the United States after September 11 and the advantages that it expects in central Asia indicate that Russia prefers bilateral relations. It is in the interest of Europe

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to understand that security of the continent as a whole can only be ensured by a Russia that is strong and stable and that a partnership between the European Union and Russia would be very profitable in this regard. In this context, the role of Germany is of particular importance. However, a partnership involving the United States, the European Union and Russia that is more complex and more balanced requires from all three actors a larger and longer-term vision. This would also comprise a certain evolution of hegemony, but in a non-conflictual manner. We found its premises in the aftermath of the Kosovo conflict and the effort to reconstruct peace in the former Yugoslavia. It would be dangerous, however, to assume that new conflicts will tend to reinforce such a partnership. In the final analysis, these contestations from states do not make resistance to US hegemony an organising principle of international relations, especially not one that might be common to all the diverse states that, in one way or another, challenge this form of American domination. On the contrary, these contestations are a sign of hegemony. It is in the nature of hegemony to be challenged but not overcome, as long as the power that underlies it has not metamorphosed or been reduced. Could such a metamorphosis, which would transcend hegemony or dissolve it, result from a transformation of international society? Is it not already present, in inchoate form, in the crystallisation and ascent of an international civil society, which is founded on different sorts of actors, other principles, other values, different objectives and mechanisms other than those of traditional states, which thus look like dinosaurs and are bound to disappear from an environment to which they have become structurally illadapted?

B. Structural Challenges: The Transcendence of Hegemony We should first distinguish two distinct and even opposite forms of contestation or challenge to US hegemony On the one hand, there is a militant form, which partakes of the anti-state approach and tries to justify a transcendence of the state. It also comprises a political design around the theme of Global Governance, a sort of world self-management by multiple networks of, on one hand, experts, visionaries and moralists who are grouped together within NGOs and on the other hand, public officials in national and international institutions who are aware of the necessary evolutions. This approach could be taken back and utilised by states, but in different ways. It has a lot of attraction for small developed states because they find in it a way to judge the larger and more important states, which have at their disposal more traditional power. It could also serve the designs of the dominant power, because the criticisms addressed to the nation-state do not have to do with the United States. This anti-state line of thinking therefore develops underhandedly a culture of subjection, which would leave, in the

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face of a dominant nation-state, only a universe that is amorphous and split up. The project, which is pacifist, humanitarian, ethical and altruistic is in a way the discourse of Antigone. On the other hand, however, the events of September 11 have in a spectacular fashion brought to the first plan a different form of challenge or contestation. The latter is oriented headon against the dominant power, but with asymmetric means—terrorism, clandestine activities and violence that defies any rules, like the violence of Spartacus. Far from combining to meet in the middle, these two forms mutually contradict each other. i. The Discourse of Antigone We speak of a discourse because the intellectual underpinnings of NGOs and the real influence that they exercise are ideological in nature. The means of this influence are persuasion and other means of ascendency over minds. It is important for NGOs to define at the outset the new priorities of international society. Then it is necessary to show that the traditional behaviour of states is not capable of meeting these new priorities, and consequently the need for restructuring international relations around new designs and new actors becomes apparent. The new priorities are global in nature. Such is the case, for instance, regarding human rights, humanitarian law, the preservation of the environment, disarmament and economic development, which leads as a consequence to a reinforcement of universal norms and to a sanctioning of serious offences by an international criminal court. The methods that are resorted to in this regard imply a pressure exercised within states through institutions or international conferences that aim at adopting appropriate judicial instruments. The Rio Conference on the environment and development, the Kyoto Protocol on the environment, the Montreal Convention and the Rome Statute, which instituted an international criminal court, offer significant examples of instruments established through the influence and pressure of NGOs. NGO legitimacy has been acknowledged, and they stand as partners with governments, at times even as mentors. Their influence at times appears to be a substitute for that of national parliaments. This discourse is not new. It represents the recurrence of idealistic, utopian, internationalist and pacifist thinking, which has regularly marked international society during periods following drastic change. It has sometimes been fruitful and is worthy of respect. In addition to its appeal to small states, which we previously mentioned, it has an attentive audience in the European Union. This is so for a number of reasons, namely a feeling of guilt toward the developing world; a feeling of regret for the excesses committed during past moments of glory and power; the inability to solve problems on the merits and the consequent need to resort to humanitarian assistance, for which NGOs offer the most appropriate channels; doubts

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regarding the traditional forms of the state and its sovereignty, which the European construction indeed aims at surpassing or transcending; and values promoted by the European Union, such as peace, prosperity and justice, which it feels is important to spread universally. It is important to note that NGOs take Europe as their primary target or their principal stop. The reason is that European countries prefer to act in accordance with principles and through certain norms, and they are consequently particularly open to the type of discourse that we are discussing here. This type of discourse leads to emphasising normative positions as opposed to concrete actions and to compensating a certain disengagement of power by the expression of good feelings of solidarity and compassion for all sorts of distress and misery. However, the discourse ends here. If coercion becomes necessary to preserve values when they are ignored, then we have to wait for military action by the dominant power and then simply support it, as in Kosovo. The discourse risks in this way becoming, in a surreptitious manner, a form of justification for hegemony. But it risks also emphasising the concrete inability of states to project their power and values. NGOs, if we view them as representing or embodying the type of discourse that we are talking about, are not capable of turning the discourse into actions through their own means. They have to try and use the means available to public authorities. They need to conduct subversive action, which catches, appropriates and perhaps destroys the instruments of state power. This is to emphasise that their thesis is in the nature of ‘demand’ and that action by states is necessary to enforce it. Even if NGOs are capable of setting the agenda, they need actions from states. Such an agenda does not permit bypassing states. It could at best turn state domination into some kind of benevolent leadership—but a leadership that would be more collective than unipolar in nature. Such is perhaps the role of American NGOs in particular, which aim to make the use of power more moral and to reinforce the direct influence of American civil society upon the conduct of foreign relations. Their weight is nevertheless more limited than in other states and is more effective vis-à-vis European states than with regard to the United States itself. NGOs are therefore confronted with a dilemma: either they are taken over and claimed by the states without whose material, financial and political support they could not function; or they become a more radical instrument of contestation by confronting states and colliding with them head on. Recent events in Seattle, Genoa and Durban have emphasised the latter possibility. The struggle against capitalist globalisation, which renews and revives the contestation emanating from the developing world and recycles its themes, in fact turns against Western countries their own values. But the events of September 11 have created in this regard a breaking, which affects civil society as much as states.

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Challenges to Hegemony

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ii. The Violence of Spartacus The reference to Antiquity is in no way a sign of favourable appreciation for the methods or of the objectives of those groups who resort to terrorism, mass murder or types of arms that are universally prohibited, or who show a disdain for human life or fundamental human rights. The reference to Antiquity aims only at emphasising the determination of these movements to go to the very extreme end of their resolutions and the irreconcilable nature of their confrontations with the dominant power. Their violence, which is subversive in nature, is aimed at the United States in the first place because it too resorts to coercion, and from this standpoint, the asymmetry is reduced. The challenge, however, is broader in scope, plainly justifying the solidarity of those countries that are not directly affected but whose social and political systems are based on the same values as those that govern the United States (on the domestic level). The two forms of contestation—what we have referred to as the discourse of Antigone and the violence of Spartacus—therefore resort to opposite methods, each adapted to a specific target: a normative type of action toward Europe, which is particularly receptive to it, and a warlike violence against the United States, which is thus challenged to demonstrate and export the reality of its military power. Can this challenge succeed? Somewhat unexpectedly, the challenge stems not from a large Asian power but from the Arab/Muslim world, and furthermore, it does not embody itself in a particular group of states or in a geopolitical entity. The regimes in these countries, to the contrary, are affected in varying degrees by the support that violence might elicit in the midst of their own populations, without it being possible to determine who amongst them would be the likely victim of such violence. Terrorism stems from a diffuse group of networks that are scattered, mobile and difficult to seize. It could be interpreted as the ultimate desperate, suicidal combat of movements that are declining: like Guevarism in its time, it may be doomed to failure. After all, radical political Islam itself has faded and met the rejection of most Islamic countries. Terrorism could therefore be in the nature of a parenthesis, more or less quickly closed, the defeat of which would in the final analysis reinforce American hegemony. On the other hand, if the struggle were to last and widen, we might also identify a sign of the impotence of American hegemony. This is underscored first and foremost by the inability of the United States to restore its own internal security but also by its inability to restore international security. This might lead to its real weakening, but with no visible alternative. There is no doubt about American determination, even in the long run, and the means that it has at its disposal, both diplomatic and military, are considerable. But its strategy in part is still to be invented. Entering a war is always a step into the unknown, and nobody knows what might result from

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it. It is also always a failure in itself, because it means that one was not able to prevent it from happening, nor to resolve in time the problems that made it appear. It shows an incapability to define an appropriate pacific way of change. A war widens the scope of what is possible and increases uncertainties. It is clear at any rate that it places once again the state and its means of coercion at the heart of international relations—or, more precisely, it highlights and emphasises a position for the state that it never really lost. This observation leads us to note that the first victim of the events of September 11 was civil society in its entirety. Civil society has certainly been damaged in the immediate aftermath, but beyond that, those who speak on its behalf and endeavour to promote civil society have also been injured. In its economic dimension, transnational firms, which are one of the components of this society, now see their activities threatened by general economic slowdown and by the increase of risk in certain countries. Civil society is also affected in its political dimension, since the agenda of international society is focused once again on questions of security and the resort to force. No one is seriously envisaging that Osama Ben Laden will be brought before an international criminal court. Instead, an order is given to kill, and it causes no controversy. Civil society is also affected in its ethical dimension, since the discourse of NGOs finds itself disqualified or pushed to the background, even when this is not appropriate. Notable in this regard is the resort to torture against alleged terrorists, which has not elicitedaction from NGOs that are otherwise concerned with human rights. Symbolically, the belligerent face of Osama Ben Laden appears in relief behind the pacific face of José Bové, even if this is an unfair comparison. A pacific discourse coming from the rioters of Genoa has little echo. In the face of determined violence, pacific stances eventually lead to subjection. The contradictions of international civil society thus come to the front, because it comprises such altruistic NGOs on the one hand but also criminal organisations, mafias, arms and drug trafficking organisations, as well as terrorist movements on the other hand. We are also led to observe that the radical opposition expressed by terrorism is much less asymmetrical than it appears to be. Behind terrorism are certain states that are accomplices or even co-authors, and the asymmetry of the means results simply from the differences in the power possessed by the different opponents. Terrorism has always been the arm of the weak, and it can only prosper with the support of states. The response of the United States vis-à-vis Afghanistan, the retaliation that it threatens against other states such as Iraq, its efforts to constitute a coalition against the Taliban and the alleged networks of Ben Laden—they all reaffirm the primacy of interstate relations. The struggle for internal insecurity within all threatened states reinforces public authority in those states. Hyper-terrorism in response to hyper-power results in a return to the monopoly of the state.

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Some have tried to compare the events of September 11 to Pearl Harbour. A comparison with the incident in Sarajevo in 1914 seems more appropriate and enlightening. The assassination of a royal couple who was to succeed to the throne of Austria-Hungary was a challenge that was as symbolic as it was asymmetrical. Germany and Austria-Hungary deemed it a good occasion to punish Serbia, which was a ‘rogue state’ of the time. This eventually led to an interstate war within Europe and then to a World War. And yet we often invoke the development of international civil society during the years preceding those events: utopic projects proliferated, and transnational exchanges and international ideologies were very fashionable. War restored the supremacy of the state for the rest of the twentieth century. The terrorist destruction of the Twin Towers in New York reproduces in a way the symbolic challenge that was made through the 1914 assassination in Sarajevo. In the immediate term, and without prejudging the future, the events of September 11 have also brought to the forefront the responsibilities and actions of states, in the form of their political and military apparatuses—in particular those of the most powerful among them, the United States.

IV. Conclusion We have said that hegemony is existential and, by its very nature, to be contested. The attacks of September 11 have not (yet) changed the American mode of domination or its instruments. We can observe a mechanical and almost automatic response, which has been spontaneously brought to bear on a problem that is unknown—akin to how an organism becomes feverish as a reaction to a virus. We can also observe a persistence of techniques that have proved themselves thus far, even if these techniques are imperfect. It seems that under the present circumstances, no challenge is able to overcome American hegemony, at least not universally. To a large extent, it is a hegemony by default because there is no recognisable alternative to it, other than perhaps general chaos. Only the European Union seems potentially capable of forming another design, but circumstances so far do not seem conducive to such an undertaking. The future of American hegemony therefore depends on itself first and foremost. More specifically, the future of American hegemony depends upon its ability to maintain itself on an economic and military level; upon an assessment of the cost and benefits to the United States of maintaining its hegemony; upon US domestic political dynamics; and finally, upon the development of new concepts of international relations, a task that American think tanks and universities are well-equipped to tackle.

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3 The United Kingdom: A Comeback after the Decline?*

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HE UNITED KINGDOM has always aroused a mixture of admiration and exasperation, especially, though not only, in France. Admiration abounds for its institutions, models of stability and efficiency, individual freedom and collective action; for its civilisation, which has achieved real universality, perhaps even more than France likes to claim for itself; and for its international influence, which has certainly not been free of trials and tribulations, though in no way any less than that of France. Exasperation, on the other hand, abounds with regard to its social system, which is marked by spectacular and deep-rooted inequalities; with regard to foreign policy, which is often perceived as hostile and almost deliberately domineering, despite the so-called Entente cordiale; with regard to its supposed duplicity, which has made the country a dubious member of the European Union; as well as with regard to its diplomatic arrogance, which has led it to claim to be the closest US ally, in other words the confidante of, and possibly even inspiration for the sole world power . . . In other words, it is difficult to reach a balanced judgment about the United Kingdom in France, and analysis often gives way to a plea in either its defence or its indictment. Anglomania and Anglophobia are an integral part of France’s national heritage. So why not first give the floor to the prosecution before bringing on the defence? And what would be the objective of this trial? For the purposes of this analysis, the goal is to look beyond its long history and understand the United Kingdom’s approach to the twentyfirst century, to appraise the current status of its influence and role internationally at different levels. Is it making a comeback as a solo country? Or conversely, is it being absorbed or reined in within much larger groups— Europe, which it would finally join; or a transatlantic axis in which it would merely be a lieutenant to its American Big Brother (and not necessarily even first lieutenant)? It is up to readers to form their own opinions.

* Previously published as ‘Ouverture: Le Royaume-Uni: après le déclin, le retour’ (2006) 20 Questions internationales 4–9.

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I. The United Kingdom: From World Power to an Outdated Model Let us begin with the prosecution, from a cavalierly negative perspective. First, some basic facts: let us compare the United Kingdom in 1906 and 2006. In 1906, the British flag was unrivalled both on the high seas and in colonial territories. Britain emerged as the arbiter of war and peace. Its civilisation illuminated its sphere of influence, its population was brilliant and it was at the vanguard of the most developed countries. It appeared to have reached its pinnacle with the end of the Victorian era. Reduced to limited means, especially militarily, but armed with considerable political astuteness, the country seemed to have achieved its ambitions of becoming a modern-day Athens: it had amassed power, freedom and intellectual supremacy; its citizens enjoyed tranquil and contented everyday lives; and its maritime empire meant that everyone sought to ally themselves with Britain, but Britain had no need to commit to anyone. The picture in 2006 was dramatically different. The twentieth century dealt a fatal blow to British power. The United Kingdom had become an island in a sea of minor relevance, a relatively impoverished country with an average population, forced to depend on others and no longer in a position to dominate anyone; it had lost Ireland during World War I and most of its Empire during World War II; it watched as the United States grew increasingly powerful, usurping the United Kingdom wherever and whenever it could. Britain had to a large extent relinquished its ability to make independent decisions, had abandoned its industrial role and had been forced to resign itself to a unified Europe—something it had always dreaded and in which it is far from being the primary power. Perhaps the Titanic’s shipwreck was a symbol—a precursor to a historical calamity that saw the United Kingdom transform in merely a century from the biggest world power into a country like any other, struggling to find a role for itself. As Arthur Koestler wrote so gloomily in 1963, it was the ‘Suicide of a Nation’. If France’s colonial wars were compared with the United Kingdom’s, the latter might at least reckon that it had mastered decolonisation and rather elegantly broken away from being a major power. But is that really the case, especially when you look at it more closely? Indeed, that would be making light of the more or less long-term disasters triggered by the way in which decolonisation took shape in different parts of the erstwhile British Empire: the violent partition of the Indian sub-continent; apartheid in South Africa and its poisonous effect over the rest of the continent; the division and occupation of Cyprus, where a wall still disfigures the capital of a country that is not yet a master of its own destiny, despite being a member of the European Union; and last but not least, the raging international controversies that are Palestine, Kuwait and Iraq. In the past, people used to say that

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throwing oil on the embers was a British method—not all those fires have been snuffed out even today. In fact, even if the 1956–2006 period is taken as a reference point, the picture is hardly any brighter. As late as 1956, the United Kingdom could delude itself into believing that it was one of the victors of World War II and had the right to intervene against dictators. The Suez expedition, conducted in concert with France and Israel, was a striking and instructive example. Britain learned that in fact, no more than any other European country, it had not won the war. World War II was admittedly its shining hour of heroism but also its swansong. It was forced to bow down to the US order to withdraw its ships and troops and fall in line. Almost half a century later, it was second in command to the United States—though in actuality far lower down in the list—as it took part in a new sort of Suez expedition, this time against Iraq. Between the two expeditions, its alignment vis-à-vis US policies, with the exception of the Vietnam War, remained more or less constant. An apt example can be found in the USdominated NATO, where the United Kingdom seems to have been reduced to a docile go-between for American power in Europe and—if its big brother allows it—the rest of the world. The United Kingdom’s decline was not caused by any curse: its own mistakes led to its downfall. In fact, it betrayed its own principles. It had been the custodian of a European balance of power, which had worked in favour of its own objectives of universal domination, but the country forgot to fulfil its duties several times. It allowed Alsace-Lorraine to be annexed in 1871, creating an irreconcilable crack in Europe while simultaneously nurturing imperial Germany’s continuous adventurism. It paid for its mistake with World War I. Worse still, following the war, which had negative repercussions for the United Kingdom, it mistook division for balance of power and encouraged Germany’s resurgence. It once again left a weakened France alone to face the rising danger and deluded itself with its appeasement policy until the next disaster, which proved far more damaging. And finally, it chose not to join Europe after World War II—despite the fact that such an option would have assured it the leadership of Western Europe—and instead persisted in its ‘special ties’ with the United States, which existed mostly only in its mind. These were historical lapses for which it paid the heaviest price. When all is said and done, the Britain came out of World War II relatively worse off than Germany or even France. A realm of nostalgia, a cult of tradition and appearances, the United Kingdom was not nor was ever able to inspire any sort European project. As for its political and social model, it is no longer much of an inspiration for others. Admittedly, its two-party system does ensure continuity of power, but it fails to allow the renewal of political forces, which seem to have become frozen in place. Its public services are only renowned for their inefficiency, their problems and ineffectiveness; British

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The United Kingdon: Continuity, Modernisation, Globalisation

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society is still hierarchical and hard on the weak; employment no longer precludes poverty; the country’s multiculturalism is at times a de facto apartheid; and its monarchy is far from truly adapting to a democratic society—in fact, unlike its Nordic equivalents, it has missed its aggiornamento . . .

II. The United Kingdom: Continuity, Modernisation, Globalisation The above indictment, many will protest, is rather excessive and unjust. The task facing the defence is much easier. It is true that the United Kingdom has witnessed a century filled with ordeals. But it overcame them with remarkable cleverness, and at the dawn of the twenty-first century, it has emerged as much more a master of its own destiny than it seems, with a greater capacity for influence than most of its partners. Furthermore, it has been more of a return to normalcy than a decline in its power. After having won the second Hundred Year War against France (the war for universal domination) between the inception of the War of the Spanish Succession in 1700 and Waterloo in 1815, the United Kingdom found itself taking on responsibilities to which it did not aspire. Also, it would be too easy to ascribe to the nation some of the wars and destruction that occurred above all due to errors made by others, particularly the European states’ warlike policies. As for the relative decline in its power, it is actually all of Europe’s power that waned, not just that of a single country. Furthermore, in all these crises, the United Kingdom also demonstrated a tenacity that many would envy. It has always been able to stand by its principles and never surrendered to any form of submission. It broke with the ‘splendid isolation’ of its years of domination and self-interest and has demonstrated much greater international solidarity in defending Europe’s common values than it has before. For instance, it has been one of the leaders of the fight for international criminal justice, even against the United States. It has shown concern for the fate of Africa, regaining the spirit that had placed it on the frontline of the battle against slavery two centuries earlier. By supporting the entry of former socialist states into the European Union, it has asserted the duty of tilting development in their favour. It does not really oppose the common European security and defence policy but merely believes that for an as yet undetermined period, Europe needs the United States just as much for its security as well as to play its global role. Labelling the United Kingdom an archaic country would mean being taken in by appearances. In fact, it has been able to institute the reforms required by the country’s modernisation much faster than other nations. Margaret Thatcher, then Tony Blair—one from the right, the other from the left—became models of innovation, strategy and political action, not only for Europe but also for the world at large. In their own ways, each managed to avoid repeating the welfare state patterns that were suffocating

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certain Continental economies. In other words, they broke away from the Keynes–Beveridge model, despite the fact that it represented modernity after the two wars—and British modernity at that. This kind of intuition about the future and the broadly economic view of social organisation— which has always been a characteristic of British socialism as compared to French socialism, the latter being more strongly marked by egalitarianism, for instance—limited partisan ideological clashes. However, national consensus does not exclude respect for differences, as can be seen in the devolution of substantial powers to Scotland and Wales. The same skill and the same elegance can be seen in the United Kingdom’s adaptation to the survival of the Commonwealth. British decolonisation, which started earlier than others, was probably based far more on the desire to lighten a burden that had grown too heavy for the country to bear than was the case for other countries. That made it easier to maintain links with an entire set of more or less distant, more or less different countries in which the Crown played much more than merely a symbolic role. Whatever we may think of the political toll of British decolonisation, the Empire left a deep and accepted imprint in several of its former dominions. It promoted the spread of English as a universal language, with the result that the British can feel at home anywhere in the world and can still think of the world as a space in which they can find their own place everywhere. Furthermore, it is British rules that are applied in most international sports; football, cricket, rugby and tennis are moreover popular markers of civilisation, reminding everyone everywhere of the green grass of England, the royal-like dominance of referees a reminder of the power of British judges. So it is not at all surprising then that the United Kingdom is adapting better to modernisation than most of its Continental partners. For the United Kingdom, it is a natural sphere of expansion, as it traditionally favoured free trade (despite its brief detour through colonialism). It is in this context that the UK attitude toward European construction should be viewed. It can, of course, be seen as duplicitous or even a perverse desire to destroy from the inside what it has been unable to prevent from the outside. But the United Kingdom has remained loyal to its ideas: an intergovernmental Europe, based on cooperation, largely open to the outside world. Its policy regarding the European Union is therefore quite logically one of change rather than steady progression. It also follows a policy of preventing the Union from becoming a continental block seeking to rival the United States. Between these two areas, which it considers economically, culturally, strategically and politically complementary, the United Kingdom sees itself as a pivotal country—and there is no doubt that the current form of its quest for power lies therein. It is hence a pivotal state that is skilled at using forces greater than itself as a lever—to restrain or maximise, depending on the case. Its influence can

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Duality as a Principle and Duplicity as a Method

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be exerted most keenly in three important international organisations: the UNO, of which it is a permanent Security Council member; NATO, in which it likes to think of itself as the best armed and most active member after the United States; and the European Union, in which it undoubtedly has the most difficulty defining a place for itself. However, in all three cases, it has been able to place its nationals in sensitive posts in secretariats and other internal bodies. Though not necessarily the most visible, these posts can serve as influence multipliers. It is in this way that the country can continue to apply its traditional policies in a new context: making optimal use of limited capacities, using others’ strengths to its own ends and placing flexible means at the service of constant objectives—the United Kingdom’s liberty, prosperity and sphere of influence.

III. Duality as a Principle and Duplicity as a Method In the light of the various points raised in this work, readers can form their own opinions about whether this is an indictment or a plea in favour of the United Kingdom. The author in no way claims to reach any conclusions or pass any judgment but is only recapitulating and offering subjective observations. In fact, if we attempt to define ‘the general spirit of the Nation’ like Montesquieu, we might observe that the United Kingdom seems to have internalised a sort of duality. It is a monarchy but also a democracy; despite their freedom, British nationals are not citizens but subjects. Britain is a veritable museum of feudal traditions; yet at the same time there is an élite eager for modernity. It is an individualistic society, but a country of classes. There is a State religion, but British laws and courts protect religious freedom. There is one ‘United’ Kingdom, but it is multinational and strives to respect the traditions of the nations of which it is composed. It is both part of Europe and not European . . . In this duality lies the very enigma of the original setting of detective novels. There is a reason that it is it the culture that gave birth to Dr Jekyll and Mr Hyde, to Dorian Gray. British literature seems to combine criminal mania and rational control, even in the more benign characters of Graham Greene’s novels or in the ambiguities of John Le Carré’s. At the international level this inherent duality translates into a kind of duplicity in the United Kingdom’s behaviour. While that is a criticism often levelled at the country, its government has deployed it as a skill so dexterously that it has made an art of it. Duplicity is correlated with balance; something with which the country’s foreign policy has long been identified. It is correlated, because it is neither its cause nor consequence, but merely a component. On the one hand, it is useful to have several irons in the fire so as to be able to tailor one’s preferences to changes in power and so as to support the weak against domination by the strong; on the other hand, who controls the balance of power becomes the master of the game, resulting in

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a balance that carries contradictions within itself. It is true that a balance of power is no longer the organising principle of Britain’s international behaviour; it now seems to prefer the company of the strong. However, it continues to demonstrate an unparalleled political astuteness, reinforced by its privileged insular location—which we must not fail to mention. Political cleverness prevents Manichaeism and ideological reductionism; it embraces nuance, ambiguity subtlety, calculated infidelity and continuous behavioural adjustments depending on the objectives being sought. It is this astuteness that went missing in the United Kingdom in the second half of the nineteenth century. In fact, the country seemed to be resting upon its laurels, and it took the shock of two world wars to wake it back up. And it still took time to do so, as can be seen by the length of time it took for the United Kingdom to gauge the true implications of the European Community-building dynamics and by British incredulity when faced with the depth of the Franco-German rapprochement. During the first half of the twentieth century—a cruel shock for the United Kingdom—it was able to curb Germany’s imperial ambitions but finally had to pass on its hegemonic torch to the United States. Since then, the United Kingdom, far more than other nations, seems to have become aware of the new context surrounding the end of the East–West confrontation. Within this context, it seems to be facing a more familiar picture once again—the entire world, not just Europe. Today, armed with both tradition and modernity, it is pressing forward towards the new century, its eyes wide open.

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4 Imperialism and International Law in Europe and the United States*

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MPERIALISM AND INTERNATIONAL LAW can be examined through the framework of interstate relations. They are only tangentially concerned with civil societies, NGOs, transnationalisation, alterglobalism and all the fashionable issues that were prematurely pushed aside due to the events of 11 September 2001. Moreover, when one reflects upon international society’s organisation as a whole, it can only be done within an interstate framework. Examining this interstate structure has as much if not more to do with the analysis of political ideas related to international society than with the study of its true basis, that of the actual conduct of states. One must admit that it is intellectuals who use the imperial discourse much more than the leaders responsible for it; the latter are more moderate and pragmatic. In the United States in particular, there is an intellectual current that seems to be much taken with the hubris of domination—thereby confirming the Orwellian view that intellectuals have always dreamt of wielding the whip. Neither competition nor interstate hierarchy, and not even imperial designs, are new to international relations. What is new, however, is the fact that the notion of competition among powers, which long dominated international relations, has disappeared today (though certainly only temporarily), and we find ourselves in a situation of, if not unipolarity, then at least undisputed US pre-eminence. What is the form of this pre-eminence, how can states position themselves in relation to it and are there any alternatives to it? These are the issues that will form the crux of our observations in the ensuing pages. We can begin in section I by making a distinction between empire and domination, because the terms ‘empire’ and ‘imperialism’ are often used rather ambiguously. Sections II and III shall then analyse the American and European models of interstate relations respectively, in order to measure their differences, particularly with regard to the conception and role of * Previously published as ‘Conclusions’ in E Jouannet and H Ruiz-Fabri (eds), Impérialisme et droit international en Europe et aux Etats-Unis (Paris, Société de législation comparée, 2007) 317–34.

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international law, and to determine in what way they can or cannot be described as imperial.

I. The Empire and Domination What is striking is that whenever empire or imperialism is mentioned, international law is more often than not set aside. And it is true that there is a certain incompatibility between the driving forces behind imperialism and international law. Not only is the former inherently political while the latter is normative, but a priori they seem to be at loggerheads. International law is based on sovereign equality between states, while empires are based on domination and subjugation. However, this observation needs to be qualified, because international law is axiologically neutral and flexible and can lend itself to all sorts of situations, including domination—the examples of protectorates and, more largely, of colonial empires are very illuminating. In this regard, we need to come back to the purely legal dimension—the instruments and methods used by the United States and the European Union to achieve their objectives and expand their influence. In dwelling on the notion of the empire or imperialism for a moment, it appears that for the most part, it is envisaged as a phenomenon of domination in multiple forms, although each stems from the same concept. It seems to me that it is important not to define reality too narrowly but rather to distinguish between different modalities of domination—distinctions that will allow us to characterise and compare the United States and the European Union in this regard. Generally speaking, what we envisage under the term of empire is a phenomenon of domination that is territorial, human, economic and political, with universal designs, whether with regard to the enterprise itself—which is imperialism—or the established empire, which is its product or outcome. It can already be distinguished from other forms of domination, particularly hegemony—a term frequently used as its synonym. However, hegemony is a non-territorial form of domination, much softer in some respects, also less costly for its beneficiary, who adopts a narrower vision of its national interests—but we will return to this topic later.

A. Empire as Concept, Reality and Process As far as empire is concerned, it can be envisaged as a concept, as a reality and as a process. As a concept, an empire or the imperial project is a kind of autism—a voracious autism. Imperialism is autistic because of its inherent urge for universal absorption and capitulation, for territorial and political unification and for the dependency of imperial subjects, all of which leads to the rejection and exclusion of others as partners or equal subjects of law; instead all others are mere objects to be captured. This is quite far

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removed from the world of Kant or even Hobbes—rather, it is closer to Parmenides’ world, a self-contained whole, embracing the entire being, immutable and compact. Imperialism is voraciously autistic because an empire by definition seeks to expand and conquer, and all with a perfectly good conscience, as it believes it is bringing unity, peace and progress. We are therefore in the presence of a concept of Europe that is not necessarily totalitarian but at least total—ie, seeking to absorb, to reduce all known political entities into one. In this regard, it is a denier of international law, because its ultimate purpose is a world state. In reality, historical empires correspond very little to this concept. Firstly, only the Roman Empire came anywhere close to being universal, and even so, it was quite far from being so. From the viewpoint of unity, the Roman Empire may also have brought two cultures—Latin and Greek—together, but they remained distinct from one another, and the continuing distinction between the two was the very basis for the separation of the Western and Eastern Empires. Subsequently, three main forms of empires came to light. One was that of territorial empires, bringing together quite different cultures and peoples, united because of territorial proximity and domination alone: the Ottoman, Russian and Austrian Empires, in particular. The second form was colonial empires, characterised by territorial dispersion and the heterogeneity of peoples, subordinating more or less remote civilisations that were also considered inferior; diversity and inequality were their main motivating factors. And finally, the third form: ideological empires, of which the USSR has been the sole example, subjugates peoples that are quite different from each other through a single model of political domination. Imperfection is already quite evident in these three forms of empires, not to mention the structural contradiction of empires. An empire is never more than a process—one that is indeterminate, unstable and also doomed to failure. None can achieve universality; they inevitably come up against competing claims or insurmountable resistance. None can achieve unity but must rely on fragmented institutions and rules because they have to take into consideration the cultural diversity of the various elements that constitute them. According to Michel Serres, ‘l’empire en un mot dit le multiple inintégrable.’ [Empire, in one word, speaks of the unintegrable multiple.]1 We could also mention Caracalla’s edict, which in 212 AD granted Roman citizenship to all the Empire’s free subjects, despite the fact that the Empire’s decline had already begun. In a similar vein, Régis Debray even had the bizarre idea of wanting the United States to imitate Caracella and grant US nationality to all Westerners!2 No empire has truly achieved peace, because their very form 1 M Serres, Rome: le livre des fondations (Paris, B Grasset, 1983). Translation: Rome, the Book of Foundations, trans by F McCarren (Stanford, Stanford University Press, 1991). 2 R Debray, The Edict of Caracalla, or a Plea for the United States of the West by Xavier de C*** (Paris, Fayard, 2002).

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is defined by war, just as their disintegration takes place through violence. None has achieved sustainable progress either: the Western Roman Empire ended in the long night of the Medieval period, and the Eastern Roman Empire, to quote Julien Gracq, gave way to the ‘dictature morne et stupide’ [dreary and stupid dictatorship] of the Ottoman Empire.3

B. American Global Project, European Regional Project Moving beyond the definition of empire in general—which is a substantial issue, albeit merely a question of vocabulary for some—we will now compare two sizable and powerful examples: the American global project and the European project, which is still regional in dimension. The Western world is as divided as united by these two international-level projects, and they play a large role in transatlantic relations. Western Europe’s relationship with the United States was in fact initially a major factor in the region’s successful resistance to Soviet domination. Since then, it has transformed into an American protectorate—no longer including just Western Europe but also Central and, to some extent, Eastern Europe. The protectorate’s sustainability—which is implicit and not accepted as such by all European states, though some profit quite well from it—is far from assured. Even within this framework, there is growing unease over the differences between US and European conceptions of international society, which also find expression in legal terms, with regard to the meaning and place of law in international relations.

II. The US Model of Hegemony and International Law A. Three Successive Models of Power If we start with the US model of domination and international law’s place within it, we must begin with its historical development. Chronologically, it went through three broad phases. First there was the Monroe Doctrine, which promoted continental isolationism. It lasted a century and allowed the United States to build its national space and eliminate European imperialism in Latin America, which was then replaced by US protection of Latin American independence—protection that was merely a prelude to US domination over a major part of the continent and that expanded throughout the twentieth century. The United States disapproved of the European colonial empires and, in particular, refused to take part in the 1885 Congress of Berlin. At the same time, it became the primary industrial power in the world at the turn of the century, paving the way for its entry into global international relations with World War I. 3

J Gracq, Le Rivage des Syrtes [The Opposing Shore] (Paris, Librairie José Corti, 1951).

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The second, internationalist model lasted about fifty years, with its high points during the presidencies of Wilson and Roosevelt, until Reagan’s election marked a turning point in the early eighties. This was the era of the League of Nations and the United Nations, and the US role in their foundation is well known. This phase was far from homogenous—on the contrary, it was quite chequered. The United States did not become a member of the League of Nations, and from the 1940s onwards, the universalism of the United Nations began to fade, as the Western world turned inward as a result of the East–West confrontation. The North Atlantic Treaty Organization (NATO) seemed to work as a small-scale United Nations, with stronger security-based ideology that substituted legitimate collective defence for collective security, the military dimension for the political. This model’s characteristic features were the channelling of American domination through institutionalisation and hierarchic and coercive multilateralism. These were times of leadership—a collective project in which each partner could find its national interests and not imperial ideas. The current model emerged in the 1980s with the Strategic Defence Initiative (SDI) as its instrument and symbol. The SDI was a sort of inverted Marshall Plan that isolated, threatened and subordinated instead of uniting, rewarding and liberating, as the Marshall Plan had done. This model has been less an imperial model than a hegemonic one—ie, its modus operandi being non-territorial and politically limited domination, established solely on the basis of national interests and the beneficiary’s own advantage. US domination was built upon several pillars—in fact, it could be described as a polygon of domination, and these pillars could be described as the army, the dollar, Hollywood, CNN and the internet. They respectively constitute a military pillar; a monetary and then economic pillar (because the dollar became a symbol of capitalism, which epitomises the US model); a pillar of imagination; an information pillar; and finally a pillar of technological development and cultural expansion. The polygon of US domination is a pentagon, which, according to physicists, is the most stable of forms. Within this comprehensive system, which links the visible with the invisible, the real with the imaginary and the hard with the soft, the fundamental pillar—the one that is unparalleled in the world—is most certainly that of the military. It pervades all the facets of US domination (the militarisation of foreign policy, the importance of research and development in the defence sector)—so much so that the President’s pre-eminence depends heavily on his capacity as ‘Commander-in-Chief ’. The military pillar is not just the armed forces in the narrow sense of the word but also the image of US war power, as well as its technological and strategic superiority, which always strikes adversaries in advance and leads them to adopt asymmetrical strategies that can at best be defensive—including even the ‘hyper-terrorism’ of September 11 and its contentious consequences.

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B. US Hegemony and International Law In this hegemonic pentagon, there is little—if any—space for international law. In other words, the American enterprise of domination is an attempt at deconstructing classical international law. Alejandro Lorite Escorihuela’s term ‘nationalist international law’ sums it up quite well.4 Here, too, we find another pentagon, delineated by the instrumentalisation of international law; discrimination; deregulation; unilateralism; and coercion. Instrumentalisation means that international law is not considered as a constitutional framework in which a state’s action must be deployed, to which it would be naturally subordinated. International law in this framework is not a manifestation of values that could ensure some sort of universal legitimacy; it is merely a ‘toolbox’—a term widely used by American leaders—comprised not only of rules but of institutions, including multilateral ones. These are merely instruments offered to states for them to use freely. Depending on the circumstances, support for state action can be sought from the Security Council, NATO or an ad hoc coalition. As for rules, John Bolton made a telling comment in 2004: ‘Customary international law is not made by law professors. They tell us that international custom is constituted by state practices. Well, if the rules don’t suit us, we can change the practices.’5 The second point on the pentagon, discrimination, can be understood in two ways. On the one hand, the United States is an entity unto itself, entitled to unique treatment in accordance with its international responsibilities and its status as the sole world power. The United States cannot be subjected to the same laws as other states; those laws may apply to others but not to the United States. On the other hand, discrimination can be understood with reference to countries that do not in fact respect this common law—‘rogue states’, ‘states of concern’ and those that are part of the ‘Axis of Evil’. They must be identified, condemned and possibly punished. The United States does not hesitate when faced with the apparent contradiction that would seem to make it the main rogue state, because it is convinced of its own benign hegemony. The third point on the pentagon, deregulation, led the United States to free itself from bothersome regulations, because they were static, bureaucratic and hampered progress (as they perceived it). The process of deregulation originated long ago when the United States separated itself from the Bretton Woods agreements and fixed exchange rates in 1971, followed by the deregulation of air transport from 1977 onwards. The United States promoted a dual policy: on the one hand, the country kept itself apart 4 A Lorite Escorihuela, ‘Cultural Relativism the American Way: The Nationalist School of International Law in the United States’ (2005) 5(1) Global Jurist Frontiers. 5 Speech at the Fletcher School of Law and Diplomacy, Boston, 30 September 2004.

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from several multilateral conventions and institutions—Montego Bay, the Comprehensive Nuclear-Test-Ban Treaty (CTBT), the Ottawa Treaty regarding anti-personnel mines, the Kyoto Protocol on the environment, the International Criminal Court (ICC) and the Convention on the Protection and Promotion of the Diversity of Cultural Expressions; on the other hand, the United States sought to paralyse or even wreck some of these conventions and institutions, especially the ICC and, to a large extent, the whole arms control enterprise itself—ie, preventive instruments for arms control. The United States also sought to cut itself off from jus in bello or humanitarian law. Unilateralism is the other face of deregulation. It is both a unilateralism of refusal, including the recurrent examples presented by non-participation in the above-mentioned conventions, and a unilateralism of promotion, when it is explained that the universalisation of American law is the best solution in certain fields (as has been claimed for Internet regulation). In broader terms, it is a unilateralism that grants domestic US law absolute primacy over international law—thus it does not matter if the Security Council does not authorise recourse to armed force as long as a US Congress resolution authorises it. Such a doctrine bears a name: it is not dualism, which requires international law to be translated into national law to take effect; it is rather monism, whereby domestic law supersedes international law when there is a conflict, as André Decencière-Ferrandière theorised. This amounts to a negation of international law. This monism, which is based on the primacy of US law, is, however, corrected—but also protected—by a non-egalitarian bilateralism. It allows the United States to ensure that other states exempt it from certain international obligations, and US determination to protect its nationals from ICC jurisdiction is exemplary in this regard. The last point on the pentagon, coercion, relies essentially on the desire for the free use of armed force. Though this is the principal aim of coercion, it is not the only one—one could add economic coercion, notably the fact that World Trade Organization (WTO) decisions do not deprive the United States of recourse to countermeasures. Entitlement to the unconditional right to recourse to armed force combines unilateralism, deregulation, discrimination and coercion. Moreover, it is an example of the instrumentalisation of international law: there are legal tools available to develop coercion, depending on the circumstances, including the Security Council (eg, Resolutions 1373 and 1540), NATO, ad hoc coalitions (of which the Proliferation Security Initiative (PSI) is a recent form) and even unilateral ‘sanctions’ (eg, against India and Pakistan). More generally, the United States prefers coercive regimes to preventive regimes, and freedom to regulation. Instead of engaging other states in a cooperative partnership, it finds it more suitable to identify dangerous countries, isolate them and apply coercive measures. It can be seen how all this points to a hegemonic rather than imperial type of domination. Hegemonic power refuses to assume territorial and political

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responsibilities, to ensure direct territorial and human administration (because to do so would be too costly) or even to assist with the reconstruction of states (except when it has no other option, as in Iraq). Hegemonic power is based preferably on bilateral agreements, military bases and the search for economic advantages, as much by organising the establishment of trading partnerships as through obtaining privileged access to natural resources, especially energy resources. Politically, it is evocative of Bismarck, who Henry Kissinger referred to as the greatest statesman of the nineteenth century6 and who wanted to be at the centre of all balances of power, than it is evocative of Gladstone, who wanted as far as possible to remain at a distance from a backward and dangerous world. This kind of domination, which is also a sort of compromise between isolationism and interventionism, is much more defensive than it appears.

C. A Fragile Hegemony All this also underlines the fragility of the American enterprise. Even if we limit our observations to interstate relations, this model of hegemony faces three major obstacles: the absence of political legitimacy; the impossibility of subjugating autonomous centres of power; and the structural resistance of international law. i. The Lack of Political Legitimacy Legitimacy is undoubtedly a fundamental concept in the political order, despite being difficult to define. It is quite clear that you cannot grant legitimacy to yourself; it must be conferred upon you and, at the least, acknowledged by others. It was Guglielmo Ferrero, in particular, who highlighted this concept at the international level, with his view of the Vienna peace talks as the basis for stability in the nineteenth century.7 At the very least, legitimacy implies the voluntary obedience of those who are subjugated; irrespective of whether they are called subjects or citizens, they must feel that the authority being exerted over them is acceptable because it is, after all, beneficial. However, that is far from the case—at least for a vast majority of states. The United States has even regressed from this point of view, the Iraqi crisis marking a turning point in this regard. There is a widespread view that the United States does not offer a global project in which everyone can find a place—which might indicate a kind of leadership—but rather it seeks to dominate to its sole advantage and in its sole national interest. The United States cannot evoke the legitimacy of substitution either. Nor that of progress, as its efforts towards Latin American development, with 6

H Kissinger, Diplomacy (New York, Simon & Schuster, 1994). G Ferrero, Talleyrand au Congrés de Vienne, 1814–1815 (Paris, Editions de Fallois, 1996). 7

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NAFTA for instance, are far from convincing. As for Russia, which was opening up to US influence and was seeking a special partnership, it is now instead witnessing a systematic dismantling of its former areas of influence at the hands of the United States, especially in Central Asia. Nor can the United States claim the legitimacy of peacemaking, because it has not been seen to actually resolve international conflicts (the Israel-Palestine conflict, endemic violence in Africa or the Indo-Pakistani conflict) or even control the risks of nuclear weapon proliferation in North Korea and Iran—or, for that matter, to find a way out of the Iraqi impasse. Some even believe— though it is probably somewhat excessive on their part—that the United States encourages chaos: instead of dividing and conquering, it disorganises and conquers. ii. The Impossibility of Subjugating Autonomous Centres of Power It is impossible to subjugate autonomous—if not antagonistic—centres of power: India, China and Russia, in particular, but also the Arab world, which remains largely rebellious vis-à-vis American values, and even Europe, despite its internal divisions. All this is happening as if a latent multipolarity really exists on the ground—one that is much more firmly rooted than the heralds of the US model believe. Without adopting a theory about declining US power, we may well wonder, along with some American authors, whether contemporary international society’s organising principle is that of resistance to US hegemony, rather than US hegemony itself. iii. The Structural Resistance of International Law Despite frequent and widespread criticism of the UN Security Council, it remains a major source of international legitimacy. The key role that it plays, along with the principles of the sovereignty of states and the equality of states, in maintaining international political order points to the fact that internationally, traditional political and legal values still endure. The United Nations is the custodian of the current international balance of legal and political elements—which includes legal equality, the requirement of states’ consent to international rules and the search for common interests and multilateral compromises. The balance is admittedly imperfect and incomplete, but it is the most comprehensive to date.

III. The European Model of Influence and International Law Almost point for point, the European model contrasts with the US hegemonic system. It does not oppose these designs openly or directly, instead compromising with them and submitting partially to them; but the European model is ontologically distinct, even separate. No doubt the European model cannot be destroyed from the outside, but it can be broken from within, because of

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divisions among its Member States about its nature, objectives and means. In this regard, the danger it faces is not so much the failure of the draft treaty establishing a European Constitution but rather British perceptions of Europe. To a large extent, the United Kingdom carries the torch the US hegemonic project, aspiring to use it as a means towards European subhegemony, as well as to its own advantage. Let us first look at the European model in relation to itself, before examining it vis-à-vis the world outside.

A. The European Model in Relation to Itself The European model is based on the UN Charter and has been developed within its context. To be more precise, in building Europe, Member States seem to have wanted to make Article 55 of the Charter a concrete reality. Article 55 contains a very extensive vision of international economic and social cooperation, mentioning among other things, raising living standards, full employment, culture and education and the respect of Human Rights for all. The objective is to create the necessary conditions for peaceful and friendly relations between nations. In other words, it is still about international security but through the establishment of peace between nations, as opposed to the security-oriented (and military-oriented) conception described in Chapter VII and the Security Council’s enforcement mechanisms. This structural peace was precisely the primary objective of the European Community and subsequently that of the Union, and it is the one that has been best achieved, as the idea of war between Members has become unthinkable. The political elements on which the European model is based are collegial governance; inter-governmentality; the joint exercise of public powers, whether in the sphere of international relations or of domestic affairs; political democracy, both domestically and with regard to common institutions, with a weighting of votes depending on population differences; compromise between Members; majority rule, with the exception of essential national interests and the option Members have to keep away from common measures, in limited cases. All this is far removed from any spirit of state domination within the Union. To the contrary, the institutions and rules have been set up in such a way that steady domination by a majority over a minority has been avoided. The famous France–Germany bloc in particular has never tried to impose any hegemony but rather exert a kind of leadership, in the sense that their capacity to direct has depended on taking the interests of the other Members into consideration, and the two states contributed to financing the Community’s budget to a large extent. In terms of its connection with international law, the European model is just as original as the US model but in an entirely different manner. Its form likewise corresponds to a pentagon, but not one that deconstructs law but conversely goes beyond classical international law. Its five basic elements

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can be summarised as follows: being based on conventional international law; maintaining a self-sufficient whole; being hyper-regulatory; upholding shared values; and essentially being governed by Community jurisdictions. The construction of Europe is based on international law, whose tried and tested techniques have been borrowed—treaties, international bodies and the laws derived from them—following procedures that have already been tested in other frameworks and in other forms. However, the role of written law in Europe, on the basis of treaties and standards derived from them, is clearly more developed than in international law in general. Community law, a collection of basic treaties, common institutions and the laws derived from them, is aimed at providing a framework for the all-around behaviour of Member States within the Union’s context. Technically, it is directly incorporated in domestic laws and occupies a prominent position in the hierarchy of standards. Materially, it infiltrates all fields of legal activity in Member States and tends to subordinate their own activities. It leads to a sort of pan-legalism, which is the Community-level transposition of the rule of law. It is self-sufficient in the sense that all the problems raised by its application by Member States and Community institutions can be solved exclusively through recourse to its mechanisms, without calling upon general international law techniques. In this sense, it constitutes a specific legal order that is based on international law but at the same time autonomous with regard to it. It is also a hyper-regulatory law, not only because it infiltrates all aspects of Community Member States’ legal life and that of their nationals but also because of its tendency to regulate the issues it deals with in minute detail. Hence, it is in no way a laissez-faire law. Concern for the unification of its governing rules leads it to impose very precise and restrictive regulations, which sometimes make those subject to it see it as constraining. Freedom and competition remain its primary objectives, but organised in such a way as to do away with internal protectionist measures and national discriminations through affirmed legal voluntarism. Community law is not a mere instrument. It is also a law that upholds values that play a role in defining the Union’s identity. The European Convention on Human Rights, initially external to the Community’s construction and today incorporated well within its framework, contributes a great deal to it, as does the Charter of Fundamental Rights, which, however, could not be endowed with the authority of a convention due to the failure of the constitutional treaty. These identity-bearing values also aim at giving the Union political legitimacy, which is still being debated, though we shall come back to this issue later. Finally, this European law is essentially a law governed by Community judges—hence a law characterised by judicial overdevelopment, although the competition between the Court of Justice of the European Communities (CJEC) and the European Court of Human Rights (ECtHR) and even

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domestic jurisdictions does correct this aspect somewhat, while at the same time making it more complicated. Hence, it is not simply a legal order but also a jurisdictional order, and if there is any imperialism in the EC’s construction, it is without doubt its legal imperialism to which one should refer. In fact, its judges have relied upon the fairly vague provisions of the basic treaties and on the mandatory nature of their jurisdiction in order to impose an integrationist conception of the Community, which probably exceeds what the authors of the initial treaties envisaged. It is very far from what Montesquieu said about judicial power being ‘so to speak, invisible and null’. The ability to interpret Community treaties as the last resort has placed judges at the heart of Community-building. Hence, the backbone of the European model is legal, even jurisdictional. The impetus and the splits remain political, whether regarding expansion or deepening, but the judges quickly occupy the terrain conquered and ensure the irreversibility of what the Community has achieved—essentially a common legal heritage. This heritage is a sort of legal precipitate. One may well wonder whether the political enterprise is itself really democratic, given the extent to which it substitutes intergovernmental agreements and technocratic decisions for parliamentary deliberation and municipal referendum— not to speak of the growing and uncontrolled role of commercial lobbies. In this regard, the failure of the constitutional referendum could be a warning sign—the future of Europe will not be grounded without its people, even less so against its people, and therein lie the limitations of the legal dynamic as such.

B. The European Model vis-à-vis the Outside World It is in the external dimension of the European model that comparison with the US model makes the most sense. As far as relations between Member States of the EU are concerned, a better comparison could be made with US domestic law. From the outside, the international behaviour of the Union and its Members marks a break with a warring and conquering past, with varied histories of colonial imperialism. However, this does not mean disinterest or non-intervention. On the contrary, the European Union and its Members are very concerned about the external world—and not only as a market open to economic competition. For instance, the ‘right to intervene’ on the basis of humanitarian law is largely a European issue. It implies interfering in other’s affairs and sometimes acting in their place. But can it be referred to—as some do—as ‘liberal imperialism’? First of all, the expression is contradictory, much like the term ‘enlightened despotism’. Secondly, it does not correspond to reality, above all because the European Union does not have the means to be imperial, except with regard to states aspiring to join it. This fact points to several circles of influence with regard to the European Union.

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The first circle consists of European countries intending to become EU members. They are often subjected to a gradual incorporation of EU standards. In particular, they have to adapt their domestic laws to EU legal standards, develop the rule of law, institute procedures for representative democracy, fight corruption, guarantee human rights and protect minorities. Hence, as a result of their candidacy, these countries are faced with a sort of legal and institutional standardisation. Should this be seen as EUstyle imperialism? Certainly not, for no country is forced to apply for membership—Switzerland and Norway have shown that a country can be in Europe and not in the Union—and if candidates bow before these requirements, it is obviously because they expect to enjoy the attendant advantages in the not too distant future. It must also be added that the considerable expansion of the Union over the last few years has brought about an appreciable fall in European standards. The second circle of influence consists of countries that fall within the ‘neighbourhood policy’ framework. The geographic and material outlines of this EU policy are yet to be clearly defined, and we are not really sure it will be a prelude to future admission to the Union or a substitute for it. Once again, the logic of the policy is based on attraction and not domination. While beneficiary countries do have to meet certain conditions, it is largely because they too receive certain benefits in return, on the basis of reciprocity, give-and-take mechanisms or else do ut des, to put it more nobly. If there is any asymmetry, it is more with regard to neighbours of the neighbours who, for their part, could well raise questions. But it would be difficult to see this limitation of the Union’s territorial space as a sign of imperialism. The third circle of influence consists of the African, Caribbean and Pacific (ACP) group of states, with whom the European Union has relations based on international conventions and whose trade and development is likely to be favoured by the European Union in the form of certain economic benefits. It is true that many of them are former colonies of one or another of the former European colonial powers. It is also true that the interest shown in them in this way owes much to the influence that these former colonial powers would like to continue to exert in these areas. And it is just as true that, in exchange for the advantages they are granted, they are increasingly being asked to apply ‘good governance’ criteria, along with electoral monitoring mechanisms, so as to place them under some sort of democratic control. Can such aid for state-building and the rule of law be considered ‘liberal imperialism’? It would be difficult to draw such a conclusion, as the method used is in no way coercive but rather based on contractual logic. The fourth circle of influence is the universal circle. Internationally, each Member State continues to enjoy its independence to a large extent, apart from economic negotiations. In the United Nations, for instance, EU Member States conduct their own policies, which do not necessarily converge. The

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same holds true for their attitude vis-à-vis the United States. Nonetheless, the shared values of the European Union find expression at a universal level: preference for multilateralism; for cooperation over confrontation; for restraint rather than coercion; for preventive non-proliferation mechanisms (eg, the ‘non-proliferation’ clause introduced in several treaties); as well as general support for the United Nations, peacekeeping operations, activities aimed at state reconstruction and international criminal jurisdictions. All things considered, EU Members taken collectively are the primary contributors to the UN budget (over a third), although this financial strength is not translated into political influence.

IV. Two Opposing Models We have yet to compare the European legal-jurisdictional model and the US model of coercive hegemony. Although there has not yet been any real break point, head-on collisions between the two systems have multiplied over the last few years. The unilateral recourse to force in the case of Iraq created tension, but the division was more internal to the European Union and did not really set the United States against Europe. Then again, European states have remained attached to the conventional enterprise of preventive arms control, whereas the United States has been tempted to move towards coercive counter-proliferation—but the two stands have complemented each other in the case of Iran and in the case of the Proliferation Security Initiative (PSI). An impasse in this regard would have meant not only the failure of nonproliferation but also a failure for counter-proliferation.

A. The Judge and the Sheriff Essentially, the main confrontation between the European and US models so far has been over the International Criminal Court—though it has been more discreet than the tensions mentioned above. As stated above, the United States seeks to conclude bilateral agreements with states parties to the Rome Statute that tend to exempt American nationals from ICC jurisdiction, whereas European countries have been fighting against such effort and consider it contrary to the Statute. This legal battle even extended to the Security Council with regard to the immunity of national forces engaged in peacekeeping operations. European countries have scored some points in this confrontation, though without winning in any decisive way. On this point, the opposition between two conceptions of international relations can be clearly seen, one based on the primacy of law and the other on the primacy of coercion that is sheltered from all international law restrictions. Like Robert Kagan, we could look at this like the difference between Mars and Venus, between power and weakness, between ‘masculine’ and ‘feminine’ values, between rightness (whereby you stand and face your enemy)

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and ruse (whereby you find a way to trick him).8 And if we were to refer to more ancient times and look towards Greece instead of Europe, this difference in approach could be compared to the difference between Achilles (always in a hurry, always ready to fight, finally destroyed) and Ulysses (not any less courageous nor any less resolute, but measured in his strength, aware of how to make time his ally and how to use roundabout means in order to reach his goals). And if we looked to mortals instead of Gods, especially those more mortal than others, such as the gladiators, we would find the Mirmillones, who fought with offensive weapons and brandished a double-edged sword, and the Retiarii, who cast nets and enmeshed their adversaries so tightly that they could not extricate themselves. All these different kinds of behaviour and stands in no way demonstrate an imperialist plan on the part of the European Union, whether liberal or not. Rather, it could be said that Europe is trying to find a universal message, leave behind the decline and devastation it suffered as a result of the last two world wars and propose a discourse other than colonialism, fascism, Nazism or communism, which characterised it for a major part of the twentieth century. It is looking for some sort of international redemption, attempting to share with other states the lessons it had to learn at such a great cost. We know how important the ‘duty of memory’ is for Europe, like the historical guilt that it has taken on itself, which sometimes takes the place of a good conscience—it is as if Europe were converting this sense of guilt into universal goodwill, without wishing to acquire the tools for domination and without even harbouring ambitions of leadership. In this regard, the European model is affected by insurmountable limitations. However, the role of the United Kingdom is somewhat unique in this context, and we shall come back to it in a moment.

B. Limitations of the European Model The most visible form of limitation that prevents any European attempt at domination is related to armed forces. Europe is largely disarmed and is unable to ensure international security on its own, even in its immediate periphery. Nor can it intervene externally in any effective way. Subject to an American protectorate for its own security—a protectorate institutionalised by NATO—it can only make subsidiary contributions to the security of other countries. The biggest structural limitation, which is in fact the reason behind Europe’s military weakness, is the European project’s lack of political legitimacy. The European project has not led to a political structure because it has not yet identified a principle of legitimacy and has not invented an institutional concept transcending the state. A great deal has been said about the 8

R Kagan, ‘Power and Weakness’ (2002) 113 Policy Review.

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Community’s spill-over—the fact that it is travelling on automatic gears— which in some mechanical way would move from being technical to political or from economic to political or otherwise make it possible to build the Union as a political object (ie, the European Union as a legitimate source of authority for its Members and their nationals). But it must be admitted that the gears have seized up, and the spill-over is no longer effective. Even the Euro has not really led to any proper economic governance. In any case, the European model remains regional in nature. This limitation is an integral part of it. It has not—at least, not yet—identified its borders and cannot operate any universal reorganisation of international relations. However, this does not exclude the possibility of universal influence, although it does exclude any idea of domination. And influence can only result from the example that it provides. In fact, influence should result from exemplary behaviour. After all, the reconciliation between France and Germany, from which all European enterprises have stemmed, is one of the miracles of post-1945 international relations—and a miracle with very positive results. Indeed, there are many who could take inspiration from it, much to their benefit, especially India and Pakistan; Israel and its Arab neighbours; the two Koreas; and China and Japan. The world would be more peaceful, more prosperous, more stable and more democratic if they did take inspiration from the European model and emulated it. But it can clearly be seen that they are not heading that way. The greatest limitation on the European model is probably the internal division among Union Members: to put it more simply, the conflict between a continental project, symbolised by the France–Germany partnership, and an Atlantic project, symbolised by the UK inclination to look towards the United States. The British concept is currently dominating the scene. However, it fundamentally dismisses any political organisation of Europe. The United Kingdom has in no way converted to the European project: it continues to stand by its traditional policy of divide and conquer. This notion shows that the United Kingdom has not for its part forsaken its imperial vision of international relations. This can clearly be seen in Robert Cooper’s words, which describe an imperial vision deployed at two levels: vis-à-vis Europe itself and, secondly, with regard to the rest of the world.9

C. The British Model of Europe and the Transatlantic Dissolution of the European Union With regard to Europe, we cannot fail to be struck by the vocabulary used by some UK scholars and officials. For instance, there have been statements that the Union should have been called a ‘Commonwealth’, that the 9

R Cooper, ‘The New Liberal Imperialism’ World Observer, 7 April 2002.

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European identity is a false idea and that only nations count.10 We are also struck by UK actions that, in a way similar to US behaviour at an international level, seem to claim a privileged status in Europe—not joining the Schengen scheme; not participating in the Euro; continuing with its reduced financial contribution to the European Union—all the while continuing to exert its leadership of the Union. An explanation can of course be found—one that goes beyond mere insularity and is instead based on collective psychology, ‘l’esprit général d’une nation’, which was so dear to Montesquieu. The British feel that they won World War II, whereas the building of Europe was defined and undertaken by the states that were the losers, in one way or the other. The British have not understood—or refuse to understand—that they too, like all the Union’s Member States, in reality lost the Second World War. Basically, the British vision of Europe can be seen in caricature when looking at Cyprus. Cyprus is divided into three zones: a sovereign British zone; a zone occupied by Turkey, whose admission to the European Union is supported by the United Kingdom, although it is considered an occupying power; and between the two, a population that has only a very restricted identity and does not really have the right to be itself (ie, Greek). These zones may certainly be in Europe but are above all controlled by NATO members—and to Britain’s advantage. The ideal Europe for the British would readily be an extension of this small-scale model—which leads us to the fundamental motivation of the UK concept, which is an Atlantic view far more than a European one. And this throws light on the principle underlying it—that of being inside and outside, and governing the inside on the outside. This brings us to the British view of international society and Europe’s place in it. The analyses of Robert Cooper, the British diplomat who is now the EU Director-General for External and Politico-Military Affairs, refer much more to the transatlantic axis than to the European Union. To these illustrative examples may also be added the words of Paddy Ashdown, the former High Representative in Bosnia, who conducted his duties in a very authoritarian manner, more like the governor of a dominion than like a senior international official. He explained that the aim of the mission was to enable Bosnia’s eventual accession to ‘Euro-Atlantic integration’.11 Hence, UK policy can be seen as an auxiliary to American policy (the UK position regarding Iraq being another example); the United Kingdom assumes a hegemonic position towards the European Union, while at the same time making the most of the European Union—especially its financial means— in order to achieve objectives that are only partially those of the Union.

10 11

Ibid. ‘Lessons for Fixing Failed States’ International Herald Tribune, 21 November 2005.

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V. Conclusion It seems that the ‘liberal imperialism’ that is sometimes ascribed to the European Union should in fact be identified in the Atlantic context for it functions only within that framework—mainly though not exclusively to the benefit of the United States and its hegemonic policies. But if the American and European models are taken separately, purely by themselves, a distinction can be drawn: the US model is executive, coercive, military—a realist model; the EU model is peaceful, legal, judiciary—a still largely idealist model. Neither of these is complete in itself, as fundamental legitimacy at the political level is lacking in both cases; it remains to be invented. The United Nations is merely a somewhat dried-up embryo of such legitimacy, and unfortunately, not many pay attention to it anymore.

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5 The State between Fragmentation and Globalisation*

T

HE WORDS USED in the title of this essay were chosen to enable us to go beyond a purely legalistic approach in order to integrate legal facts into the broader legal context from which their meaning derives. State, fragmentation, globalisation: these terms constitute the three poles of our analysis. The relations between them form the threads tying it together, with the state forming the central focus. It may well be supposed that the state is not terribly popular. Once again, it is being brought before the tribunal of history, this time a prospective or speculative history. At worst, the state is being asked to reabsorb or dissolve itself, even to be broken up by these opposing forces. At best, the state must accept that it is in a period of metamorphosis. It is therefore useful to shed some light at the outset on this trial to which the state is being subjected (section I). From this basis, we can then move on in section II to consider the observed or predicted break-up of the state: is it indeed a case of fragmentation or, on the contrary, the promotion of a new model of the state? Finally, section III concludes our analysis by examining this curious term ‘globalisation’: what is it really? Is it not simply a contemporary mask for the c1assic old game of domination? Should we speak of globalisation or of the hegemony of the New World?

I. The State on Trial The trial against the state raises questions about its domestic dimension as well as its international role, implicating it on both a political and a legal level. Accusations against the state are by no means a recent phenomenon, but the problems currently facing it are based on new realities. And these new realities seem to indicate that fragmentation and globalisation are complementary rather than mutually exclusive processes.

* Previously published as ‘L’Etat entre éclatement et mondialisation’ (1997) 1 Revue belge de droit international ( RBDI) 5–20; and in English as ‘The State between Fragmentation and Globalization’ (1997) 3 European Journal of International Law 421–34.

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A. The State: Dual Nature and Dual Role It is therefore necessary to focus on the dual nature of the state: on one hand, it is a legal concept embodied in a set of organised norms, ie, a normative system; on the other hand, it is a political body, structured on the basis of a principle of legitimacy that distinguishes it from any other body and gives it its unique identity. The state has a dual nature but also a dual role: it is at once the expression and the totality of a domestic society, and at the same time, it is the foremost of international institutions. As the first amongst international institutions, the state is the pillar of classic international law. International law cannot be contemplated without states, even less so can it be thought of as being against states—interstatism defines its depths and limits. The existence of international organisations does not create an exception to this, for they are, as is well known, also interstate—even intergovernmental—bodies for the most part. It is as an international institution that the state ensures civil peace and public order within its own territory, contributing to the peace and stability of international society and carrying out its communication and cooperation functions with other states. It is in this dual role, domestic and international, that the state is today being brought into question. Firstly, concerning its internal homogeneity, national identity itself is being put to the test by regional-level demands, minority rights issues, cross-border relations, immigration, disrupted societies and a growing dichotomy between the rich and the poor. Secondly, territoriality, the traditional domain of states, can no longer ensure a state’s enclosure; nor can it protect this identity. Borders have become increasingly permeable to human, material, goods and services, and intellectual exchanges. In place of the logic of a fixed juxtaposition, there is a tendency toward international nomadism, which not only effaces space but also penetrates borders. Given this, the classic domestic/international distinction is being eroded. By the very nature of things, transnational questions multiply in number, whether they concern trade, the environment or human rights. Finally, in imagining the state as a functional regulatory authority, a provider of norms and services, it can be seen that the state framework is illsuited to such tasks. The opening up of markets and the globalisation of trade is turning the state into an out-dated intermediate authority, dismissed by history. Too big for the local level, too small for the international, irrelevant, a framework for oppression, the state is ill-adapted: it disturbs, it annoys, it bothers, it gets in the way. It must be reduced in size before we can get rid of it. Moreover, has not the history of recent years been one of a drawn-out illness of the state, a decline that could lead to its ultimate crisis?

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B. Several Phases of Dispute In all truth, despite its new accents, this trial has been under way for a long time. We can distinguish several phases or forms of dispute. Criticism of the state has always existed, not as the private domain of any one ideology in particular but at the intersection of many: anarchism, legal idealism, federalism and Marxism, among others, have all criticised the state. Confronted with such criticism, the state has nevertheless shown immense historic vitality in being able to adapt itself to the most diverse political, economic and social realities without losing its fundamental traits, especially its international standing. The state lives on in oblivion, and—thanks to its having been forgotten—in its transformations. Until now, it has managed to either bury its gravediggers or rally together its enemies: the former socialist countries, for instance, came from an anti-state ideology before becoming ardent defenders of state sovereignty. The current trial is, however, of a different nature, for it has been undertaken in the name of realism. The state is not being shunned in the name of an ideal society or a better future but rather on the basis of a reading of the facts. Its framework is falling apart in many places: the collapse of the Soviet Union, bloody division in Yugoslavia, the soft partition of Czechoslovakia, a perceived general artificiality of borders in Africa. The model of political structure offered by the state from its European origins appears to be coming under fire within its own cradle: is the European Union not preparing to overtake it? The European Union could indeed serve as an example for large-scale regional economic and political regroupings, thereby spreading a new model.

C. Fragmentation and Globalisation The two phenomena of fragmentation and globalisation are thus not at all contradictory. In fact, they are all the less so because they create an option between two possible developments. These phenomena result from dynamics that are more complementary than contrasting, dynamics that mutually feed one another. We can certainly imagine two modes of evolution, or two ways out of crisis for the state. There first would encompass a harmonious vision of a progressive, incremental realisation of international federalism. The state would be no more than an authority amongst others in this gradation, without any particular legitimacy or status, a simple provider of services whose privileges have been abolished. The normative hope of Kelsen or the hope for solidarity of Georges Scelle can be recognised here. We may equally fear, however, a more tormented and tragic exit from below, taking the form of convulsive decomposition, planetary tribalism, a return to the state of nature and the law of the fittest. Certain recent examples of regression provide a worrisome preview of this scenario.

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We will not hasten a guess about which of these two directions will be taken, as the elements allowing us to choose remain too unc1ear, and what is more, history never deals out more than a reshuffled ambiguity. To cite Jean Cocteau, ‘trop de transformations s’ébauchent qui ne possèdent pas encore leurs moyens d’expression.’ [‘Too many transformations are set in motion that do not yet have a means of expression.’] It is not that there are too few concepts, for the arsenal is full of them, but rather there is a dearth of secure anchoring points that would allow us to ground these concepts. Where we should find architects, discerning the mass, volumes and frames of future constructions from their half-built foundations, we strongly risk finding only lighting technicians who, by modifying the angle or intensity of the light or by moving the spotlights, will create only an artificial and fleeting reality. On the other hand, we can much more confidently analyse current data in their twofold dimension of fragmentation on one side, greater homogeneity on the other—though not a spontaneous, undifferentiated homogeneity; quite the contrary, a homogenisation pursued on the basis of a deliberate plan, an enterprise of multifarious domination.

II. From Fragmentation to the Promotion of a New State Model A. Fragmentation Quantitatively and Qualitatively On the quantitative level, firstly, the rise in the number of states as a result of dissociation from former states is not a new phenomenon. However, two very different phases can be distinguished: decolonisation and the collapse of the socialist camp. With decolonisation, which was largely encouraged by the United Nations, international society became a machine for the manufacture of states. The number of states tripled in the space of some thirty years, and the state emerged more triumphant than ever. The new states strongly affirmed their sovereignty, their commitment to the principle of non-interference, the right to choose their domestic political, economic and social systems freely. Confrontations between ideological systems turned the state into a sort of legal shell giving cover to extremely diverse forms of domestic legitimacy. Of course, the state’s fundamental unit, the hierarchical principle, making the state’s structure one of internal domination, was maintained. As Montesquieu wrote, ‘dans toute sorte de gouvernement on est capable d’obéir.’ [In any type of government, it is possible to obey.] One could even add that it is necessary to obey. It is only at one level, that of apartheid, of racial discrimination, a prolonging of colonialism, that international action penetrates to the internal

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organisation and politics of states. With the spread of the state phenomenon, the postcolonial era is therefore in large measure the era of the triumph of the sovereign state. It is protected by international rules that guarantee the exclusiveness of its domestic competences, its territorial integrity and its political independence. One and the same movement promotes both the state and international law, and the development of this latter must be based not only on the free consent of each state but also on the consensus of the ‘international community of states as a whole’, as referred to in the 1969 Vienna Convention on the Law of Treaties, regarding the formation of international norms of jus cogens. In recent years, the growth in the number of states formed through dissociation from already existing states has developed a new dynamic, but in a new context and spirit. It could be said, though it is somewhat of a caricature, that international society has become a machine for destroying rather than producing states. Break-ups and regroupings have developed or have the potential to develop precisely against this existing international society, despite the discrete resistance of its members and judicial courts: this is true in the cases of the Soviet Union, Yugoslavia and certain African countries; it is equally true in the case of the reunification of Germany, the dynamic behind which was more national than international. On a qualitative level, however, the resemblance between the two phases or steps of decomposition is stronger, but more in their rather negative elements. Indeed, in both situations—decolonisation and post-communism— we see that international society has not until now been in a position to ensure the development of new states or regimes, certainly not in terms of economic development but also in institutional, legal, political and social terms. While international society has produced states, it has hardly known how to build them—neither the states it has manufactured nor those that have somehow formed themselves against it. In the case of decolonisation, we are reminded of the failure of development law and of all types of ‘new international order’—economic, information, communication and so forth. Even more serious is the fact that after a few decades of independence, many of the new states formed in the 1950s and 1960s have been unable to ensure their political or social stability, thus remaining fragile and vulnerable. Has the ‘soft state’ concept not been created in their name, implying a weakness or feebleness? A concerted therapeutic effort has had to be undertaken to protect these states over the course of the past few years, with a broadening of the scope of peacekeeping operations in order to prevent their destruction, if not also to allow their reconstruction. Africa, Southeast Asia and Central America provide various examples. The United Nations has tended to become a hospital for the treatment of states, or even for perfecting a sort of compassionate protocol via humanitarian interventions. We can measure the extent of regression in terms of the goals set recently by development law.

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In the case of post-communist states, which have only recently come into being, it is still too early to draw any clear conclusions. However, their difficulties can readily be seen. These difficulties are; political, with respect to the initial rumblings of transition to democracy, which cannot be reduced to merely monitored electoral operations; economic, with the transition towards a market economy, the recipe for which, like that for development, is still to be discovered; and social, with the problems of national identity and especially the minorities headache. We even get the feeling that the dissociation of constituent entities is now encouraged by certain international instruments, such as the Lisbon Declaration (3 December 1996), adopted within the framework of the Organisation for Security and Cooperation in Europe (OSCE), which integrates minority rights issues into security questions. Each minority, upon analysis, tends to integrate several others into itself in such a way that this logic of Russian dolls can lead to indefinite fragmentation. It is no longer even just the idea of the nation-state that is being questioned but the social framework of the state itself that risks crumbling into dust. A recent trend must be added to this picture, whereby each individual is viewed as a minority in and of himself, with the idea of plural allegiances, linked to multiple individual nationalities, to immigration phenomena, to individuals’ legitimate maintenance of citizenship ties with external entities, both of their origin and of their choice. This phenomenon of shared loyalties leads to a deep dissociation from the unique tie that identifies a state with its citizens. There is a strong risk of it leading to zero loyalty in practice. We should therefore take care: what such a mechanism could set in motion, although no doubt unintentionally, is a planetary apartheid. Behind the mask of the right to be different, of a respect for cultural rights and cross-national ties, is a personal legal regime without borders, which could replace territorial law—that of the state. Who can fail to see that in this way we legitimise and legalise inequality, as each individual withdraws into his or her dispersed but homogeneous community? We would thus turn such a right into a machine for manufacturing, at best, ethnic states or, at worst, ghettos ridden with mafia and sects. Is this model—which Russia has failed to impose upon the Baltic countries, which Israel seeks to thrust upon Palestine and for which Bosnia reveals its stigmata—a desirable future for international society? At a time when the South African model has been rejected at domestic level and has caved in under general reproach, is it not tending to become surreptitiously a universal model in the name of the right of groups to an identity and to diversity? A rampant dissolution of states would be the result—but with no organised substitute.

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B. A New Model of the State? Against this negative analysis, we can contrast the idyllic vision of a new state model that reconciles the state of law—a variation on the rule of law— and its particular identity with an international order founded upon common rules. However, outside the European Union—a utopia underway but by this very fact geographically and culturally closed in—this is but a dream. The model for such an order is based on an abstraction rather than on descriptive elements. Nevertheless, this model is in some ways the positive vision or driving force for the ideal state, or a virtual state: it is still the state but a state that is no longer engaged internally and subordinated externally. ‘The state is undoubtedly still needed—not as an institutional fetish but simply because nothing better has been found. A political model, even if imperfect, remains until it is replaced by another superior form. Even American hegemony, which we will come back to, comforts itself in maintaining states, at least under certain conditions. We can measure the necessity of the state by looking at the catastrophic consequences provoked, at both domestic and international levels, by its collapse—recently in Yugoslavia, Somalia, Rwanda and perhaps soon in Zaire and Albania. We see in such regions an irremediable return to barbarism, with civil wars resulting from state collapse. The state or barbarism—such is the simple choice with which international society is faced. On the legal front, we also see that international law has been caught offguard by such situations. State failure falls outside the security mechanisms foreseen in the UN Charter. The international responsibility of a state, according to the proposed articles of the International Law Commission (article 14), risks complete breakdown in the case of an insurrection on its own territory. In this type of situation, all international institutions—including other states—aspire to rebuild the state in question as quickly as possible, in their commitment to stability and international security. The internal disengagement of the state, or the minimal state, occurs on an economic as much as on the legal-political level. Economic interventionism, the managed economy, the entrepreneurial state, the closed market state are all condemned, with the result that entire sectors supposedly managed by states now escape their control. Only recently were we talking about permanent sovereignty over natural resources. Now, attention focuses more on sovereignty over human resources in calls for dissolution. Job mobility, capital flight and universal investment opportunism are factors in this call to make way for change. Not only does the European model of the welfare state appear to have become outdated but the very concept of public service has itself been brought into question. A general privatisation mentality has tended to strip the state of all that which does not fall within its strict executive functions, thus paralysing numerous sectors of its domestic normative capacity.

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In keeping with the new model, this somewhat reduced domestic normative capacity of the state should be channelled and controlled by judges rather than legislators. From this point of view, the pre-eminence of the legislator expresses a conquering and idiosyncratic conception of law: sovereignty of the state, mastery over itself, political voluntarism, law directed toward change, free organisation of society from within, an instrument for change and action. The law is the sovereign power, the capacity for innovation and for decision-making; it is also the rule particular to a group. It is at the same time the act of political decision-making and the power of law as rule. The comeback of the judge does not represent a minimalist conception of law—as the legalisation of social life can be extremely complex—but rather a conception that is more reactive than active, more natural law-like than wilful, more ethical than state-centred. This conception, moreover, is part of a more open and undefined framework than that of the classic state. We can slide easily from national to international courts, in a network of competences that pierce the screen of the state: in this way, the European Court of Justice and national courts are building a body of Community law that hems in European states; international criminal tribunals can substitute for domestic criminal jurisdiction, and even the International Court of Justice via its advisory opinions can pass judgments on the security policies of states and lay claim to controlling their powers of self-defence.1 This new model of the state, if it prospers, should be completed by the external subordination of the state. The state is asked not so much to serve as a filter between the internal and the external but rather to facilitate passage back and forth, to act as an interface, not an enclosure. It is called upon to open its borders—to people, merchandise, information and cultural products. Already here, in this imposed opening up of the state to the four winds, we find one of the meanings of the term ‘globalisation’. The concept further serves to put the state in its place: human rights have universal scope, as do respect for minorities, the right of families to be together, free movement of individuals and humanitarian rights. States expose themselves to reprimand and to coercive action in the most serious cases if they fail to uphold these rights. Humanitarian intervention—ranging from NGO assistance to coercion by gunboats (whether legitimated by international instruments or not)—can at any moment remind states of this fact. The difference between international law and domestic law therefore tends to become blurred; state sovereignty is no longer just a word. Yet at the same time, international law has itself become blurred. The words of Thomas L Friedmann with regard to American policy about China provide an illustrative example:

1

Advisory Opinion of 8 July 1996 on the Legality of the Threat or Use of Nuclear Weapons.

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Mao said, ‘We will never accept foreign capital.’ Then Deng came along and said, ‘We will accept foreign capital but never foreign norms.’ Now you say, ‘We will accept foreign capital and some foreign norms, but not others.’ OK, we’ll wait for the next guy.2

These are very revealing phrases: no reference is made to international law; it is not even necessary to give it lip service. There is only a question of exporting and universalising the values embodied in domestic legislation (‘foreign laws’)—the law of the United States, obviously. We could find no better way to argue that globalisation—of markets, values, a model of the state, laws and the state model they represent—is the instrument of an intentional, state-centred policy of hegemony of the New World.

III. Globalisation: From a Global Society to American Hegemony We must attempt to define ‘globalisation’ before we can go on to observe that it is found nowhere outside the assertion of global American hegemony, which in itself is not without a number of ambiguities.

A. The Meaning of Globalisation The term ‘globalisation’ has enjoyed widespread usage in the media in recent years. We should therefore ask ourselves the meaning of a word. It creates an image, but defining its precise content proves more difficult. What does this term add to the idea of a global international society, an idea that has been a reality since the time of decolonisation? It undoubtedly adds the idea of increased economic, ideological and cultural homogeneity, as well as the ideas of solidarity, qualitative acceleration of information flows, interdependence of societies and mobility of populations. However, the expression seems above all to be a throwback to a dynamic and an objective that can only be referred to as energy. It is devoid of content or particular values, which are, conversely, carried by terms such as ‘humanity’ or ‘international community’, which are so dear to development law and the universalistic aspirations of the 1970s. In this sense, globalisation is the extension and accelerator of an ongoing process of transnationalisation. It tends increasingly to exclude human, especially economic, activities from the jurisdiction of state, interstate and institutional regulation. Thus, on the level of regulation of international relations, globalisation would appear to be more of a problem than a solution: it is characterised rather by the erosion or abandonment of certain accepted 2 ‘The Words Beijing Needs to Hear: Rule of Law’ International Herald Tribune, 7 March 1997.

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methods of regulation. Yet even the most ardent zealots of this process admit that it cannot develop in a harmonious manner unless it is based on the rules of the game, which can be inspired but not established by the partners to transnationalisation themselves. Neither the anarchic competition of transnational companies nor the disorganised fervour of NGOs can suffice here. International currencies and regular financial circuits, for example, are needed. These rules of the game must, finally, stem from or at least be foreseen by state will, even the will of a single state if it is dominant. More precisely, the new rules of the game, or simply the erasing of the old rules, flow from the will of a particular state, the United States. In this sense, the real meaning of globalisation must therefore be sought beneath the appearance of openness and homogenisation. It is in reality a vehicle of the media, a convenient term to indicate American hegemony. Globalisation is the ideal of a New World with no shores. In a way, it is a new form of triumph of the state—the triumph of a state that stands alone in its class and that has every intention of remaining this way.

B. An Unattainable Globalisation Globalisation is unattainable: in seeking efficiency, it challenges the institutional approach to international relations; in seeking homogeneity, it rejects or minimises universality; in seeking domination, it sweeps aside multi-polarity. The institutional approach is the foremost domain of the United Nations. It is striking to observe that the globalisation theme leads to a minimisation of the UN role as well as the role of multilateralism developed within it. Not only do the General Assembly’s resolutions find themselves relegated to a lower rank but major UN conferences also appear to be things of the past. The multifaceted theme of the new economic, information or communications order has come to an end. The 1992 Rio Conference on environment and development appears to be the last in the series. The new information order is CNN. With regard to the ambitions of a new economic order, the World Trade Organization (WTO) offers only a limited institutional structure. More generally speaking, the collapse of communism could have brought about a new principle of organisation based on major texts. This has not been the case. Rather, adjustments have been made by tinkering about, at best on the basis of the ‘pragmatic idealism’ that the American administration boasts about. The Security Council itself has been sidelined from the resolution of conflicts—in the Middle East, in Central Africa— after, admittedly, some unfortunate experiences following the Gulf War. In short, the United Nations has on the whole been kept out of the new style of globalisation; and along with the United Nations, multilateral diplomacy, which is an interstate, collegial diplomacy, has remained on the outside. There only remains one real moderator in international relations, and

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this moderator is a single state—the United States—not an international organisation. As for universality, this would imply that a legitimate diversity of state policies should be recognised, argued for on the ground of compromise, without accepting the exclusion of certain states. This is pitted against a policy of near-universality, which is not only quantitatively but also qualitatively different. Universality allows identification of recalcitrant states, which are few and isolated, labelling them as ‘rogue states’ or deviant, uncontrollable, currently or potentially dangerous states. This identification is in practice done by the United States, which thus seeks to blacklist dissidents by exerting a twofold pressure on them: negative pressure through restrictive, even coercive, measures if they do not accept the rules of the game (Cuba, Iraq, Iran, Libya and Syria have been targeted in this way); positive pressure through the prospect of their advantageous integration into common regimes (as is the case for China and North Korea, not to mention Russia). A number of quasi-universal regimes exist that are generally thought of as common laws and which exert pressure on states remaining on the outside: the Treaty on the non-proliferation of nuclear weapons, the World Trade Organisation, the Nuclear Test Ban Treaty and the Chemical Weapons Convention. However, on numerous accounts, China, India and Africa stand completely or partially outside globalisation—and most certainly outside these particular instances. Absent or recalcitrant states remain outside, however, for very different reasons and are not able to constitute a common front either to reject or to support an alternative organisational strategy. A multi-polar approach for its part supposes that re-composition of international society around large autonomous regional groupings would be accepted. Here, the European Union could serve as a preview and model. In this way, we could imagine continental or sub-regional poles: the Association of Southeast Asian Nations (ASEAN) for Asian countries; Japan; India; Africa (under more hypothetical conditions); Mercosur in South America; and even in the area of the former Soviet Union, the Commonwealth of Independent States. However, such empirical reconstruction (what might be referred to from another point of view as decentralisation of international society) has not been undertaken, and the prospects for autonomous organisation of these groupings remain uncertain. Large regional groupings are certainly emergent, but with the United States as the common denominator: the North Atlantic Treaty Organization (NATO) for Western Europe; the Organization for Security and Co-operation in Europe (OSCE) for the area ‘from Vancouver to Vladivostock’; the North American Free Trade Agreement (NAFTA) for the American continent (potentially including South America); Asia Pacific Economic Co-operation (APEC) for Asia; and the peace process in the

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Middle East. (Africa, however, has little chance of regrouping successfully if left to its own devices. It would be more a satellite-type of schema, gravitating around a centre rather than a balanced constellation.) Such largescale regional groupings would parallel, even replace, true universalism. There would be less need for the United Nations, for instance, if NATO, WTO and the peace process work.

C. American Hegemony American hegemony without shores is the hegemony of a single state, based on varied methods and developing in multiple areas. It is virtually universal in reach and general in depth. This hegemony is state-centred in the sense that it does not require international channels for it to be exercised and is even exercised against their dictates at times. In this way, the United States has continually reaffirmed its dominance: financially/monetarily by rejecting since 1971 international regulation that it itself instigated; in subsequently sweeping aside air transport regulation that was not initially contrary to its interests; in paralysing the United Nations while simultaneously dominating it. Not that the United States is in principal opposed to international organisations—it knows how to use the Security Council, if necessary, to get rid of a Secretary-General that is not to its liking and to impose one that is; how to use NATO as it pleases; how to promote the WTO as a mechanism for opening up markets and so forth. However, the bases of American power— cultural, economic, monetary, military—remain essentially national. An example of this hegemonic view of the state is provided by the American approach to international law, which is largely perceived as the external projection of national law. It is in this way that the international actions of the Central Intelligence Agency (CIA), which are ‘covert’, that is to say, contrary to international law, have been supervised and authorised by Congress. We can be happy with American law from the perspective of the state, but how can we not see in it a process of deliberate, open and premeditated violation of international law? Domestic law is thus placed at the summit, even above the pyramid of international measures. The rule of law, as noted above, means the extraterritorial application of American law by any and all means. It is not necessary for hegemony to go any further. Allowing the continuation of an external world organised into states is a cheap solution and distinguishes hegemony from imperialism. This latter, in fact, implies territorial domination that is reminiscent of colonial empires, which are futile and costly. It is more efficient and economical to let states take care of their own domestic and international affairs, as long as, by subordination or imitation, they conform to the views of the United States. Beyond democratic rhetoric, the diversity of political regimes is not an obstacle or a problem. As in Chinese philosophy, the true distinction is not between political

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models but between order and disorder, stability and chaos, the alternative that dominates international society. Hegemony is on the side of order and stability, not of territorial conquest or supranational integration. The methods of hegemony are opportunistic and therefore numerous. Unilateralism is practiced on a large scale by the United States in several ways: by refusal (as in, for example, the refusal to sign the Convention of Montego Bay in 1982 and the veto of Boutros-Gali’s reappointment in 1996); by protection (in the superiority of American law over international law); and by promotion (exporting American law as the vehicle of national interests and as a model from which others may happily draw inspiration— what is good for the United States is good for the rest of the world, even though the opposite is not true). Bilateralism is sought with selected partners on certain questions—with Russia on nuc1ear issues or to establish a rapport with NATO; with China as a power external to the system; with Israel as a privileged US ally. Regionalism allows the United States to be included, at the centre if possible, in all circles, as we have seen. However, regionalism that is external to US hegemony—ie, regionalism which aspires to autonomy, like that of the European Union—is distrusted and opposed if it appears to be a rival. Such distrust of and even hostility towards the Euro or the EU Common Foreign and Security Policy could herald a merciless battle against them. US allies are not partners but rather advisers or subcontractors. Of course, they have a right to reprimand the hegemonic power, but in so doing, they would expose themselves to retributive justice that would make them give in. As for multilateralism, in the context of US participation, it takes the form of coercive multilateralism, as may be seen, for example, in the conditions of prorogation of the Nuclear Non-Proliferation Treaty, the modification of the Convention of Montego Bay prior to its coming into force and the adoption of the Nuclear Test Ban Treaty. These methods do not entail preference for any particular type of legal instrument: General Assembly resolutions, formerly the domain of the non-aligned or of the challenged ‘automatic majority’, are now taken advantage of (for example, with the adoption of the Nuclear Test Ban Treaty). The use of concerted nonconventional instruments is spreading within the framework of the OSCE, which is to say that soft law has not been brushed aside. As for Security Council resolutions, while the United States insists upon their authority, there is no hesitation in circumventing them when Security Council decisions are not to its liking—as was the case with the arms embargo concerning Bosnia. When it comes down to it, the dominant principle behind these methods is always opportunism at the service of cost effectiveness.

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D. Ambivalent Aspects of American Hegemony There are clearly a number of ambivalent aspects in the notion of American hegemony. These can be illustrated on several levels. Is hegemony, at its roots, a constraint or a choice for the United States? Does it correspond to some ‘grand design’ consistently pursued over past decades? Did it already exist in seed form at the time the nation came into being, with the conquest of national space and protection of the entire continent against foreign undertakings, followed by progressive investment in other continents? Could such an exceptionally rapid and rationally orchestrated rise to power be explained in any other way? Has the United States not been endowed with a messianic ideology from the very beginning? Has this ideology not placed the United States at the origin of all the successful grand schemes of the twentieth century? We could, however, maintain the contrary, that it is in spite of itself that the United States has been implicated in conflicts that it would have preferred to avoid, such as the two World Wars. Involvement in these global events forced the United States to assume historic responsibilities that they had neither sought nor desired. The challenge posed by communism and the Soviet Union then threatened American principles and power, and the United States was compelled to react. It is true that the United States made the most of this situation in order to pursue its rise to global hegemony, which can now be challenged only by Asia. Ambiguity also lies in the justifications for and objectives of this policy. It can hardly be doubted that the United States currently wants to assume, pursue and accentuate its universal role, and globalisation is one instrument of this. But does this desire correspond to a pursuit of narrowly conceived national interests or to a more altruistic leadership in spirit, in the name of an overall vision of an international society? National interest is most often cited by American leaders as justification for their actions in the economic domain as well as in security matters. But this might be a means of gaining acceptance for an extensive foreign policy in a provincial Congress that is generally more concerned with domestic affairs. Apparent egotism would thus be masking a nobler goal, a break from the usual practices that hide small interests behind big principles. Does the enlargement of NATO, for example, represent a desire to extend freedom and stability in Europe, under the pressure of American voters of Central European origin, to permanently push Russia back eastward? Is American national security being called upon to dominate international security in the same way that American domestic law dominates international law? The same ambiguity characterises the stability of hegemony. Once again, we find the central issue of national interest, although in a different light. If hegemony is subordinated to national interests, this very fact makes it fragile. Hegemony in fact comprises only minimal engagement, disdains foreign

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military action, fears far-off losses and demands that others finance its operations and deficits. It leaves situations for a long time, to rot or to develop into catastrophes, before intervening. It even awaits such catastrophes in order to profit best from intervention—as has been the case in the former Yugoslavia, Rwanda and Zaire. It could also be recalled that during the two World Wars, the United States waited until Europe was devastated so as to be assured of benefiting from this self-destruction. This procrastination has until now been very successful. It is perhaps necessary in order to overcome a permanent temptation of isolationism. On the other hand, however, the desire to make the American cultural model universal, to be on the cutting-edge of intellectual and scientific revolutions, to ensure technological advancement, to master all areas of communication and to be a global centre can all only contribute to the lasting stability of this hegemony. A final example of ambiguity can be found in the perceptions others hold of American hegemony. It is remarkable that with only a few exceptions, this hegemony is not only accepted but indeed desired—a positive view that unquestionably contributes to its stability and is largely due to the US skill at presenting itself. It knows how to wait, as it did during the two World Wars and as it does today with respect to the countries of Central and Eastern Europe. All in all, the twentieth century has been spent waiting for the Americans. Under these conditions, their arrival, once it does come, is on the whole hoped-for and welcome. Moreover, it is generally the positive aspects of their presence that receive attention: individual freedom, intellectual openness, technological advance and capacity for innovation, among others. The United States first projects its culture and cultural products: in short, American hegemony is first and foremost the ‘Disneyland’ image. With this benign, endearing appearance, American hegemony becomes desirable, in such a way that it would be unfair to condemn this hegemony by calling it a predatory quest for domination, of which history has offered many examples. Those who denounce or fight American hegemony have often awaited it, solicited it, supported it and even profited from it. Beyond perceptions, as well as renunciations, we can also objectively observe that by itself power is cohesive and tends to gather more power around itself. The attraction to power and the phenomenon of aggregation that it provokes are virtually irresistible, and the United States has many best friends. It can choose from amongst numerous candidates with whom to have privileged relations. International society’s lack of a structural organising power leads to a tendency to rally around the one state or group of states that embodies the developing hegemony. A time of weakness will come, however, and a time of bitterness—even of revolt. But for the time being, power and the perception thereof are on the side of the United States. We must not misjudge the European project, however, which, despite such a long and difficult gestation period, has after

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all made considerable progress. If Europe as a spatial entity should become or return to being Europe as a world power, which is a possibility and perhaps even its design, then globalisation will no longer have the unipolar or unilateral dimension it has today. Otherwise, if the current predominant themes continue, there is a strong risk that the United States will have to be substituted for Rome and Americans for Romans in the following observations by Montesquieu: Il fallait attendre que toutes les nations fussent accoutumées à obéir comme libres et comme alliées, avant de leur commander comme sujettes . . . Ainsi Rome n’était pas à proprement parler une monarchie ou une république, mais la tête du corps formé par tous les peuples du monde . . . ils ne faisaient un corps que par une obéissance commune, et, sans être compatriotes, ils étaient tous Romains. [It was necessary to wait until all nations had become accustomed to obeying as free and allied, before commanding them as subjects . . . Thus Rome was not, properly speaking, a monarchy or a republic, but the head of a body formed by all the peoples of the world . . . They created a body only through common obedience, and, without being compatriots, they were all Romans.]

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6 ‘Failed States’: More Problems than Solutions*

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HE TERM ‘FAILED STATE’ has made quite a splash in contemporary international discussions. Like many such terms, it is of American origin and quite recent at that, its popularity dating back a little more than a decade, roughly to the days of the horrendous massacres in the Great Lakes Region of Africa, most infamously in Rwanda. Though the phenomenon has existed for a long time, it was not until the 1990s that it was given a common moniker. Empirically speaking, the term is clear enough: it refers to a situation in which the state cannot fulfil its essential functions, most critically that of assuring the physical security of its populace. This situation can arise either from domestic strife or from some external shock—be it intervention by a neighbour, a massive influx of refugees or a domino-effect of regional instability—the result being in turn a viable threat to international peace and security. However, such instability can arise from manifold sources. Is it reasonable, for instance, to compare natural disasters with political unrest? Is it appropriate or helpful to unite under the umbrella term ‘failed state’ all those diverse situations? Should one create a unifying intellectual concept to subsume these divergent problems? This leads us to pose two rather simple questions. First, should the term ‘failed state’ be considered a formula or a concept; if the latter, what does it mean? Secondly, what is the purpose of the term? Does it serve only to describe and enhance our understanding of a series of situations? Or does it serve to develop a common response, a plan of action aimed at ‘fixing’ these failed states? If the former is the case, then the term can be taken to represent an analytical concept, and it interests students and academics. But if it is the latter, then it becomes an operational concept of great interest to foreign policies, international organisations, nongovernmental organisations (NGOs) and the broader security sector—indeed to all those affected by a situation involving such a failed state. The following remarks are intended to help define more precisely the various terms and options associated with the debate(s) about failed states, without any pretence of providing definitive policy responses to the difficult challenges occasioned by states facing this predicament. * Previously published as ‘Sur les Etats défaillants’ (2005–06) Commentaire 891–99.

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I. A Formula or a Concept? At the outset, it should to be noted that ‘failed state’ does not refer only to bureaucracies or, in other words, the apparatus of the state. The term is more comprehensive and includes both public authorities (eg, government officials, civil servants and military personnel) and broader civil society. A state consists of a definite physical space, a given social group and an independent political power base that assures the cohesion of the whole (and which should in principle be the sole means of assurance). A state’s failure, accordingly, must concern all these aspects and can, in like manner, originate from any (or all) of them. Let us begin by examining some concrete examples, before moving on to a discussion of some more general concepts in international relations, which draw strength from these examples—specifically, let us examine two examples.

A. Some Concrete Examples The example of Rwanda has already been mentioned. One could just as easily recall the collapse of Yugoslavia more than 15 years ago, the problems of Lebanon or Cambodia dating back over two decades, the condition of Afghanistan since the 1979 Soviet invasion—or going back much further in time, we could cite the partition of Poland at the end of the eighteenth century. The preamble to the Treaty of 25 July 1772, concluded between the partitioning powers of Prussia, Russia and Austria, reads as follows: In the name of the Holy Trinity, because of the factionalist spirit that maintained a condition of anarchy in Poland and led to the threat of total decomposition of the State, which could adversely affect the interests of that Republic’s neighbours, alter the good harmony which has existed between them, and ignite a general war, Austria, Prussia and Russia . . . have decided . . . to re-establish order in Poland and to give that State a political existence in greater conformity with the interests of its neighbourhood.1

In this case, the solution to state failure—partition by predatory neighbours—appears as hypocritical as it does anachronistic. However, the description of Poland in the text of the treaty clearly does fill the bill for a failed state, even though that term could not have been employed by the drafters. Coming forward to the present day, we can see from the aforementioned examples that there is no reason to limit the existence of the phenomenon to Africa and that even Europe itself is not immune to state failure. From a more general perspective, we might well ask whether the very term ‘failed state’ is not a tautology. Is the state—any state—not inherently defective or failed by nature, as it is incapable of ensuring the maintenance 1

A Sorel, La Question d’Orient au XVIIIe siècle (Paris, Plon, 1889) 227–28.

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of stable and peaceful international relations? Is that form of political organisation of society we know of as the state not itself a cause of trouble, of violence, of conflict, and therefore something that should be replaced by a more stable form of social organisation? This way of posing the question represents the ‘maximalist’ approach to the issue of failed states; it is a perspective worth introducing because of the influence it has exerted and continues to exert on an important segment of ‘internationalist’ thinkers, particularly in France, where internationalists frequently define themselves in opposition to the state-centric view of political order. The adherents of this maximalist interpretation consider the state itself to be structurally deficient, and therefore they advocate its abolition and replacement by a new form of political organisation. This advocacy is countered by the realist (or empirical) school, which points out that historically, the solution to the failure of states has always been to reconstruct them, not to wipe them away; the state is therefore seen, from the standpoint of the international society, as an indispensable form of political organisation, the sine qua non, if you will, of international organisation. Following on from this theoretical division, let us distinguish between various forms or levels of state failure so as to account for the diversity of historical situations and perhaps even to establish an empirical typology of state failure.

B. The Maximalist Thesis: The State as Structurally Deficient The maximalist thesis refers to various strains of thought that are influential in France. It has, for example, been the traditional view of ‘federalists’ (ie, advocates of a federal Europe) who believe that the coexistence of sovereign states inevitably leads to predatory behaviour and warfare. The treatment of Poland is cited in support of this view. Hence the search for new forms of organisation, of which the European Union is at one and the same time both the catalyst and the result. Jean Monnet was an ardent and effective proponent of this approach. More recently, this viewpoint has been espoused by proponents of transnationalism—of whom anti-globalisation activists constitute the political arm—who believe that even in periods of peace, states are incapable of adequately responding to the needs of international society, be it in terms of economic regulation, development, environmental protection, human rights or humanitarian law. The solution, they argue, lies in ‘global governance’, based not on institutions but rather on spontaneous networks, and on rules agreed upon between experts, interest groups and militants—in short, by the primacy of civil society over public institutions. Both federalists and transnationalists agree on one fundamental point: the state is too big for local interests and too small for international interests; one must therefore seek not to reform it but rather to transcend it. As proof,

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they point to the fact that states have not been capable of assuring the reconstruction of failed states and can at best only try to limit the consequences of failure. In other words states can treat symptoms, but they cannot cure the disease. Thus, the disparate and intermittently recurring phenomena of state failure are seen as precursors to the ultimate crisis of the state system itself, which cries out for radical restructuring. Without entering a debate on this point of view, which is beyond the purview of this study, it is worth pointing out that the events of 11 September 2001 have dealt a rather harsh blow to these kinds of theories. As far as this article is concerned, the 9/11 attacks had three relevant consequences. First, they drove home the fact that civil society is not a panacea, because it includes international networks of organised crime and of terrorism, and permits the nefarious proliferation of weapons of mass destruction (WMD). In other words, Al-Qaeda takes precedence over such organisations as Doctors without Borders (MSF) or Amnesty International in the dominant understanding of the term ‘transnational actor’. Second, it was clear in the reaction to the 9/11 attacks that the response to the new security challenge was going to be conducted by states, and states alone. Finally, what some have referred to as the ‘return of the state’ (though erroneously, since it had never really gone away) has given new significance to the implications of failed states. No longer perceived as simply menacing domestic or regional security, the failed state is now viewed as a universal threat by virtue of the territory it potentially liberates for the operation of networks of illegal immigration, mafia, weapons proliferators, terrorists and other international criminals.

C. A Realistic Approach: The Historical Failures of States Rather than seeing the state as structurally infirm or intellectually condemned, the realist school of thought regards it as a historically determined form of social organisation that has yet to be bettered. Although from a legal standpoint there is only one model for the state—namely, that it be characterised by sovereignty and equality—in reality states are diverse, and their diversity increases with their number. The twentieth century was in fact characterised by the multiplication of the number of states. This proliferation of states resulted first and foremost from the process of decolonisation and secondly, more specifically in Europe, from the divisions related to the disintegration of the Soviet Union and the Eastern bloc. Roughly speaking, the number of states has increased fourfold since 1945, rising from about 50 to almost 200. This development underscores the fact that far from being obsolete as a form of political and social organisation, the state has never enjoyed greater success. The proliferation of states is, however, not the only noteworthy phenomenon. The twentieth century also witnessed the disappearance of some

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important states, notably the Austro-Hungarian Empire, the Soviet Union, Yugoslavia and Czechoslovakia—not to mention the intermittent existence of others, such as the Baltic States, or the very troubled existence of a singularly important one, Germany. In principle a State is eternal; at least it conceives of itself as such. In reality, however, it can disappear. The disappearance of a State, its worst fate, may at the same time become a selfcorrecting response to the generic problem of State failure, in the sense that smaller but more solid States may rise from the ashes, as has been the case with Czechoslovakia. This is no longer always the case. At least four of the six States emanating from the former Yugoslavia—namely Serbia, Montenegro, Bosnia and Macedonia—have to be considered as unstable. They may not officially have ‘failed’, but these are States that must be kept under external observation and, according to some, will require permanent assistance. This leads to the logic of distinguishing between different types or levels of failure and calls into serious question any attempt to subsume them under the one rubric of ‘failed State’. As such, one must ask if it is even reasonable to categorise such different realities under an umbrella term and whether each instance approached is unique. Indeed, our category turns out to be anything but homogenous, and at best it represents a superficial vision, corresponding to an illusory abstract internationalism that, as Jean-Paul Sartre might have put it, aspired to create ‘an aristocracy of overview’.2 The notion of ‘failed state’ is sometimes used to designate countries whose financial situation has deteriorated to the point that, for example, they can no longer meet the interest payments on their colossal public debts or even pay their public servants. If we were to declare such states in a state of legal bankruptcy, the means of dealing with the problem would become evident. International agencies such as the International Monetary Fund (IMF) and the World Bank could be called upon to intervene, auditing the entire financial situation of the country and possibly putting it under a financial guardianship. This response has often been cited in connection with Argentina, for instance. Generally speaking, the financial collapse of a country generates social and political tensions: a number of military rebellions in African countries have been linked to the inability of the states in question to pay their functionaries and, above all, their soldiers or security services. A distinction should be made between ‘soft states’ and failed states. The expression ‘soft (or weak) state’ was used during the 1960s by Gunnar Myrdal to characterise the African countries that had newly emerged from the process of decolonisation.3 Both their homogeneity and stability appeared suspect: their borders were artificial; they lacked ethnic, religious 2 3

J-P Sartre, ‘Qu’est ce que la littérature?’ in Situations II (Paris, Gallimard, 1948) 226–27. G Myrdal, Le Défi du monde pauvre (Paris, Gallimard, 1971).

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and cultural unity; their leaders were at once authoritarian and fragile; and they were dramatically underdeveloped. Because the situation of these countries has not fundamentally changed since then, the most obvious cases of failed states are to be found among their number. A distinction can also be made between states confronted with ethnic strife, internal conflict between communities manifesting by mutual oppression or even more or less organised massacres, and those whose public services no longer work, who can no longer fulfil the governance functions of ensuring security, justice and education, and who experience corruption, criminality and a kind of decomposition of the structure of the state. This distinction, though, is more apparent than real, since it is precisely when the authority of the state no longer appears to be working for the general good that ethnic tensions emerge or triumph, as illustrated by the case of the former Yugoslavia. A further distinction can be drawn between collapsed and besieged states. A collapsed state falls apart due to myriad internal difficulties, as happened with the former Yugoslavia; the latter, by contrast, confronts incursions and other troubles emanating from its neighbours, such as was the case recently with the former Zaire or the current challenges facing the Ivory Coast. Once again, however, the distinction is relative, since the phenomena are often intertwined. This exemplifies the fact that state failure can be contagious and that there is a great risk that a failed state will export its problems, such as with Macedonia or the Democratic Republic of Congo. Yet another interesting distinction is that between failed states and rogue states, which at first glance might seem to be contrasting categories. A rogue state—yet another controversial term of American origin—designates a country whose policies pose a viable regional or international threat because they violate international treaties or humanitarian rights, amount to a police dictatorship or even attempt to obtain weapons of mass destruction. However, viewed from a different angle, a rogue state is a potential future failed state, since foreign measures taken against it can lead to its collapse, as happened with the Khmer Rouge in Cambodia or more recently with regimes in Afghanistan and Iraq. One might well ask what would become of Syria, Iran, North Korea or Nigeria should their respective regimes disappear. The interface between a rogue state and a failed state also depends on one’s perception of the situation, as for example in Darfur: is Sudan incapable of controlling the private militias, or to the contrary is Khartoum complicit in and therefore responsible for the genocide? In summary, each situation in this diversity shares one common element: they all have international repercussions. This is in fact a defining feature, for a failed state is one that can no longer resolve its problems on its own and thus requires, even if it does not request, foreign intervention. Failure, of course, can take a variety of forms. A bloody dictatorship calls into question human rights and by extension universal values, which can

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lead to foreign intervention, as was the case in Cambodia, Rwanda, Kosovo and, to a lesser extent, Iraq. But the flow of refugees worries and disrupts neighbouring states, potentially exacerbating regional security problems. More generally, the existence of regions bereft of any prevailing state authority and thus subject to predatory groups, such those who compete for the control of diamonds in Sierra Leone, fosters the growth of international crime, the phenomenon of child soldiers, terrorism and even WMD proliferation, thereby posing a more generalised problem of international security. Yet this all neglects the question of how to respond to failed states. What is the likelihood of our being able to create an operational framework for responding to state failure? Can our understanding of state failure lead to organised action by the international community to bring about a status quo ante situation? If so, which strategy or strategies will be able to do so?

II. Policy Responses: Prevention, Pre-emption and Reconstruction In general, thinking and doctrine concerning this question proceed along two complementary trajectories: preventing states from failing, and responding to existing state failure. But in addition to being complementary, these paths might also be regarded as alternatives, in that the second can make sense only when the first either has not been tried or, if attempted, has not worked. Let us keep in mind this duality, in what follows. Needless to say, our observations will generate more questions than answers, because while it may be possible to identify the problems clearly enough, it does not follow that we can so easily find the solutions.

A. Prevention Prevention is ostensibly the easiest as well as the least costly approach to state failure. It also represents the most desired option, because it averts violence while at the same time requiring relatively modest means to be put into practice. In reality, though, this also turns out to be the most difficult approach, for a variety of reasons, with the result being that prevention continues to find its home more in the realm of theory than in that of practical applicability. Thus we cannot be too surprised to see that both Boutros Boutros-Ghali’s 1992 report An Agenda for Peace and Evans-Sahnoun’s 2001 report The Responsibility to Protect are mired in the theoretical realm. The guiding idea behind prevention is that we should be able to identify in a timely fashion the primary challenges to the integrity of a state, whether these be a function of decaying institutions or of the exacerbation of internal tensions capable of sparking violence against which the state is incapable

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of mustering an effective response. In this regard, we can properly speak of ‘failing’ states, which through preventive action might be kept out of the ranks of failed states. But so labelling these states presupposes different means of both analysing the problem and identifying the proper strategy for a solution. On the analytical level, we need to be able to detect, in time, the warning signs; hence, both information and vigilance are required. In terms of those warning signs, we can have recourse to certain defined criteria. On the part of the governed, we can seek evidence regarding the level of national cohesion; on the part of the governors, we can examine their degree of honesty and competence. As far as relations between the two are concerned, we can seek information about respect for civil liberties as well as the general health of democratic institutions (pluralistic competition, free elections and so forth). If such measures had been taken, the signs of impending dangers confronting Yugoslavia might have been detected in time. But vigilance is often conspicuous by its absence, either because other states have their own problems requiring immediate attention or because their hand is stayed by a commitment to the norm of non-intervention in the domestic affairs of other sovereign states. The most important among them will surely possess sophisticated analytical capabilities, to say nothing of reasonably reliable intelligence regarding the challenges facing states thought to be on the verge of collapse. But the other states often show themselves ill-disposed to make public their intelligence and their analyses, let alone to share them. As far as international organisations are concerned, they do not always possess the necessary means to gather the information they require. Too often they are dependent upon whatever intelligence Member States are prepared to make available. This has been a constant refrain of a long line of United Nations Secretaries-General. And even when, at the initiative of Javier Pérez de Cuellar, the UN managed to set up its own analysis and forecasting facility, it quickly revealed itself to be structurally deficient. On those occasions when international organisations might possess useful information, they do not always avail themselves of it—as was so obvious in the case of information being supplied to UN headquarters by the commander in Rwanda, General Roméo Dallaire. Finally, as far as nongovernmental organisations are concerned, they may well consider themselves to be neutral, but their activities and the information they provide is far from being so. On the one hand, they are committed interventionists, as one would expect them to be, given that intervention provides them with legitimacy, resources and visibility. On the other hand, they do sometimes let their analysis become tainted by ideological biases. That said, it is clear that some NGOs operate at the highest level of professionalism. An example could be the noteworthy NGO Crisis Watch, which was created by Gareth Evans, the former Australian minister of for-

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eign affairs. Whether as a result of ‘private diplomacy’ or at the request of governments, this NGO has as its mandate the timely identification of dangerous situations and the elaboration of adequate policy responses. Crisis Watch regularly publishes bulletins on the Internet that take stock of current tensions and risks, at both the interstate and intrastate levels. When we turn from analysis to strategy, our focus becomes riveted upon developing appropriate policy responses. Again, taking the case of Yugoslavia, we now know that the best thing Europe could have done would have been to arrange or at least encourage the peaceful divorce of that state’s constituent republics—and do so by giving each of them good reason to believe that their compliance would earn them eventual membership in the European Union. In reality, certain European countries—France, to name just one—strove to maintain the unity of Yugoslavia, while others such as Germany undertook to hasten its partition; this divergence of opinion and action just contributed to the acceleration and amplification of violence. Only Macedonia was able to benefit from preventive measures, associated with the deployment of an international security force whose presence in the republic enabled peace to be preserved and ethnic cohabitation to become the rule rather than the exception. Finally, although the approach discussed in this section is generally called ‘prevention’, the question could be asked whether ‘pre-emption’ is a more fitting appellation. After all, what is termed ‘prevention’ is a series of measures designed in the face of clear signs that the state in question runs the risk of ‘failing’; thus, the response is more one of going on the alert than it is of genuine prevention. What else can one say except that once the warning signs have become evident, it is already much later than we thought. But prevention, properly conceived, is something intended for application well in advance of a crisis. In effect, it entails doing those things required for preserving stability and state integrity, in order to avoid undergoing such crises. True prevention would therefore be concerned with such matters as enhancing democratic governance, safeguarding civil liberties, ensuring equality and preserving individual and collective freedoms. It is not simply because of its principles that democracy turns out to be a superior form of governance. It also assures the highest level of stability within states, effectively facilitating the peaceful expression of differences, as well as their non-violent resolution. It does this by respecting the underlying norm of majority rule while safeguarding the civil liberties of minorities. The lowest common denominator of democratic rule is this: it constitutes the means of peacefully settling differences, without which there remains only civil and political violence to sort out differences. Elections become the arbitral means through which opposing groups and principles meet each other, in accordance with the rule that the majority will form the government and that the latter will respect the rights of the minority. Thus, independently of ideological proclivities, democracy works better than

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anything else because only it possesses the capacity to assure the tranquil evolution of societies and the peaceful disposition of internal tensions. This is what Tocqueville had in mind when he stated that an election was an ‘institutionalised revolution’. Seen in this light, the best form of prevention in Europe is participation in the European Union, as it imposes criteria that do so much to assure the solidity and stability of Member States. Thus arises one of the paradoxes of the Union: it is predicated upon the construction of a new kind of economic and political entity, one that surpasses the state itself. At the same time, one of the European Union’s greatest accomplishments has been to preserve and strengthen Member States. And this is exactly what is expected to result from the adhesion of new members. But one should never lose sight of the benefits reaped by older Member States, as well. Where, for instance, would Belgium be without its EU membership, which has done so much to minimise the gravity of tensions between its linguistic communities? The European Union is not the only organisation in Europe to have this stabilityenhancing function: we need also to keep in mind the election-monitoring and minority-protection initiatives of the Organization for Security and Cooperation in Europe (OSCE), which operates on a canvas even larger than that of the European Union.

B. From Crisis Management to Reconstruction of States In practice, state reconstruction entails a two-stage process. First, crises must be managed, and intervention is needed to stamp out violence. Then, over the longer term, failed states need to be rebuilt. Crisis management is a kind of activity that raises many questions, including some that go far beyond the purview of this article. As such, we will limit ourselves to a few pertinent observations. In broad terms, we are speaking of an endeavour that is at one and the same time both a security and a humanitarian issue. It is essential to re-establish or maintain the security of people and their possessions; and it is essential to provide assistance to populations in distress, if for no other reason than to prevent a worsening of the crisis. What first must be determined in situations characterised by overt violence is the threshold beyond which intervention becomes desirable. This is a question not only of judgment but of interest as well. Australia will obviously be more vigilant in respect of East Timor than will be the European powers. By the same token, France will sense it has more of a stake in the Ivory Coast than Germany does, and Britain sees itself as having greater interests in Sierra Leone than does France. At least one, and usually more than one, of the powers will need to identify an interest in the crisis, as well as muster capacities to intervene, before any international crisis management can be undertaken; this is why so many crises, the most glaring exam-

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ple of which being Darfur,4 can be left to fester in the face of a certain indifference, or why Liberia was characterised by a lengthy bout of inertia before the United States finally bestirred itself to provide a minimal level of security services. And if nothing is going to be done, there is always the recourse to ‘humanitarian action’, ie, supporting the efforts of NGOs, which gives states the appearance of doing something without their actually having to engage themselves. Then there the matter of determining the legitimacy of action, given that the crisis at hand is patently a domestic matter and all states are supposed to have the right to tend to their own affairs. Can one really claim a right to resort unilaterally to armed intervention on the territory of a sovereign state, even if that right is demanded as a result of humanitarian preoccupations? In principle, the UN Charter prohibits the recourse to force save in cases of legitimate self-defence—something that typically cannot be invoked in the kinds of situations being discussed here. However, should the Security Council take it upon itself to authorise an intervention and security mission, then matters become simpler—assuming, of course, that one can find enough states willing to take part in such a mission. And if the Council will not or cannot authorise a mission? There always remains the possibility of a humanitarian intervention being mounted by one state or a group of states, acting on its or their own authority.5 Interestingly, though this doctrine was propounded nearly a decade ago at the time of the Kosovo intervention, one hears little of it of late, regrettably perhaps. The above-mentioned Evans-Sahnoun report, The Responsibility to Protect, is in this respect prudently cautious and therefore ambiguous in its pronouncements, maybe too much so. As a result of recent juridical procrastinations, it has become very difficult to react in time to crises. Finally, how to act and by what means? These questions concern defence establishments specifically, because it is necessary to deploy forces and develop strategies. Indeed, there is a broad field of action for armed forces, 4 Not until January 2005 would the commission of inquiry into the Darfur crisis file its report with the UN Secretary-General, pursuant to the terms laid down in Security Council Resolution 1564 of 18 September 2004. And even then, the 60-page report limited itself to the demand that the matter be referred to the International Criminal Court (ICC), created by the Rome Convention of 1978. But as the United States refuses to recognise the competence of the Court, the recommendation became less a means of suppressing massacres in Darfur and more one of embarrassing Washington before the Security Council, in keeping with a diplomatic game that had already known some previous episodes. For sure, America should have supported the entitlement to jurisdiction of the ICC. But what are we to make of a strategy that consists of trying to bring to justice those who commit genocide, instead of attempting to halt the mayhem in the quickest possible manner by organising an armed intervention? One gets the impression that in this instance, idealism and cynicism were united out of a common passion for inactivity, because when all was said and done, everyone seemed unconcerned about the massacres, preferring to exploit the media and diplomacy—so as either to irritate an ally or simply to unload a vexing problem on a judicial body utterly incapable of solving it. 5 See S Sur, ‘Le recours à la force dans l’affaire du Kosovo et le droit international’ (2000) 22 Les Notes de l’IFRI.

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and this is because of the obvious implications that failed states present for defence establishments. But there will be always be a civilian aspect to operations that might otherwise seem to be purely military in nature, such that forces deployed will be required, by the very nature of the mission, to work in concert with civilian missions, international administrators and NGOs. Military authorities can also find themselves having to facilitate negotiations between belligerent factions so as to arrange ceasefires, the withdrawal of irregular units and the disarming of militias—all activities that presuppose a kind of training of a general nature that transcends war-fighting training in its strictest sense. Maintaining security is itself an undertaking that goes beyond the interposition of military forces. Moreover, even on matters thought to be purely military in nature, officers will frequently have to interpret international mandates that have been purposely drafted to be vague. The reconstruction of states is a longer-term objective. It cannot be otherwise, if for no other reason than that we still have no viable alternative to states. Nor has recent experience been very encouraging, and not only in Africa—also in Bosnia, Afghanistan, Iraq and even Kosovo (even though it is not strictly speaking a state). African examples include the Ivory Coast, the Democratic Republic of Congo and Rwanda, among others. Cambodia looks to be one of the rare instances of (qualified) success, though not so long ago it seemed as if Lebanon could also be added to the short list with a relatively happy ending. The United Nations has acquired a good deal of experience in the reconstruction of states, though it has always suffered from a dearth of resources needed to do the job well. UN officials have developed integrated strategies applicable to nation-building as well as state-building, with the support of regional organisations, specialised institutions, concerned states and NGOs. For its part, the United States has often stressed that it has no interest in nation-building, even though it has been forced to engage in the activity as a result of recent foreign policy initiatives. The European Union has been in quite a different situation, possessing as it does both the resources and the know-how essential for nation-building. The latter stems in large measure from the historical, and especially the colonial, experience of several EU members. As well, lessons have been learned from more contemporary developments that are linked with the processes of EU enlargement, which has been effected only after new members have undertaken profound internal reforms. But the European Union suffers from weakness on the military side. In particular, it lacks credible collective means of intervening, such as those possessed by the American military—at least until the setbacks associated with the Iraq War. The European Union needs some similar capability, not to affirm its power or to develop aggressive policies but rather to contribute

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more effectively to the re-establishment or maintenance of peace. For the moment, the European Union’s comparative advantage resides in the civil domain. While waiting for the reconstruction process to be completed or, more frequently, when the process has simply been put on hold, a familiar result has been the imposition over a given territory of a process of tutelage or custodianship. This imposition of international supervision generally does not correspond to any well-defined status and is very much an ad hoc enterprise, regulated by procedures developed for each specific context. It is sometimes suggested that there be a revival of the trusteeship regime initially foreseen when the UN Charter was being drafted in 1945, with the reconstitution of the Trusteeship Council, which was one of the founding organs of the United Nations.6 The revitalisation of such an institution might compensate somewhat for the setbacks that have accompanied the campaign for reform of the Security Council, plus it could supply an international politico-administrative fillip to crisis management and reconstruction efforts. But it would also be guaranteed to run into a host of obstacles, not the least of which being the opposition of members of the Non-Aligned Movement. They could be counted upon to interpret the restitution of such an organ as being aimed at the explicit creation of a general category of ‘weak states’, eligible to be brought under the surveillance and the domination of powerful states. In fact, some of those ‘weak states’ already have been placed under Security Council surveillance, as a result of measures adopted to combat terrorism and counter the proliferation of weapons of mass destruction (notably for the former, Resolution 1373 of 28 September 2001; and for the latter, Resolution 1540 of 28 April 2004). The Council might also create a new category of ‘failing states’, composed of those who would not or could not respect its decrees; this could result in the Council promulgating measures aimed at such a state’s domestic competencies, including measures vis-à-vis domestic law enforcement, public administration, as well as judicial systems. Not surprisingly, many developing countries have expressed misgivings about such enhanced interventionism, despite it taking place under the aegis of international organisations. In conclusion or, more specifically, to tie together all of what has come above, a few strategic precepts can be listed. Admittedly, these are easier to formulate than they are to apply. First, it is essential that there be preexisting criteria to serve as warning signs of failure and to identify states that are likely to be threatened—criteria that can establish both the gravity of the crisis and its likely consequences for regional and international security. Second, prompt action is the best kind of action, because the more action is delayed, the costlier and riskier the consequences. However, to eliminate 6

A Dejammet, Supplément au voyage en Onusie (Paris, 2003).

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suspicions of biased and predatory intervention on the part of particular states, it is desirable that any action be taken only pursuant to an objective and independent determination of the facts, one validated by an international body, or at least a collective entity. Third, and in the same spirit, it is preferable that any action undertaken be coordinated by one or several international organisations—though not in such a way as to allow the states in possession of the necessary financial and military assets to pass the buck to organisations that manifestly lack the capacity to intervene on their own. With regard to these organisations, there should not be an automatic preference for the United Nations to take the lead; it can be left to contextual developments to determine whether global or regional organisations make the most sense. Always, the choice should be guided by a rational calculus of the comparative advantage and value added by the engagement of a specific organisation, and not settled merely in terms of an established institutional hierarchy. Fourth and finally, a broad and supple range of means needs to be available, inter alia drawing upon diplomatic, juridical, military, humanitarian and political resources. In the face of situations the only common characteristic of which is their uniqueness, one cannot fall back upon rigid responses, automatically implemented. This does not mean that there should be no swift effort to put into operation pre-established plans and procedures. Indeed, the Brahimi Report of 2000, intended to reform UN peacekeeping operations, urged the establishment of juridical norms to facilitate the rapid and effective deployment of UN missions. In other words, what is needed is a menu of options from which can be selected the most appropriate responses.

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7 Utopia and the International Legal System*

U

TOPIA HAS ALWAYS played a key role in the development of international society, particularly international organisations. Abstract models have often been imagined, painting positive pictures of a future world while at the same time containing an implicit depreciation and criticism of the present world. Hence, the vision of a peaceful, harmonious order favouring the development of all has quite facilely been substituted for the violence, anarchy and irrationality of relations in daily life. However, utopia does not play solely a compensatory or escapist role, because it has been able to—and can still—contribute to the direction of political actions and transform itself from a dream into a project and then an institution. Utopia is not being envisaged as a doctrinal construct here— a projection, a regret, or both an enchanting and disenchanting absolute ‘elsewhere’. The objective is to examine its partial achievements or at least its influences on positive law in an attempt to discover in what way positive international law is utopian and how utopia uses positive international law to achieve certain ends. It is therefore necessary to describe exactly what we mean by the term ‘utopia’. First of all, let us set aside the banal, too restrictive meaning that confines utopia simply to the sphere of the imaginary, seeing it only as a comforting but powerless dream. As utopia exists nowhere, it may be condemned to the status of a non-entity. By its very definition, achieving it would be impossible, and were it to occur it would dissolve immediately, repudiating its utopian character. But we propose to examine utopia here more as a method than as content, more than the specific outcome towards which it strives. As a method, utopia consists of defining an ideal object towards which conscious actions must converge. Therein lie its originality and its mystery, since utopia does not indicate any precise method of achieving the objective. It is based far more on vague aspiration towards change rather than on * Previously published as ‘Système juridique et utopie’ (1987) Archives de Philosophie du Droit ( APD) 35–45.

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a plan or program involving specific stages to be implemented gradually. In fact, attempts are made to achieve different utopias, and the classical observation is that this process leads to or risks leading to the opposite result, due to the inadequacy or contradiction of the methods used. For instance, the quest for freedom finds its roots in oppression, the Golden Age in the Middle Ages, an angelic society in diabolic behaviour, and so on . . . The question here is to understand the degree to which international law is used as an utopian instrument, where its preferential role lies within the legal system and to what use it can be put. Deviations in the meaning of the term must also be avoided, though they are common in everyday parlance. For instance, saying that international society is utopian would mean that it is only a pretence, an illusion, pure camouflage behind which lies raw power—the localised, concrete power of groups, politicians, the armed forces and economic interests, with all the complexity and confusion of the state of nature. It is true that international society is utopian in the sense that it has no precise location, as it is simultaneously everywhere and nowhere. It is superimposed on other forums, at least virtually, and although invisible, it is no less present, in the light of the same reasoning according to which an archipelago is seen as a group and not a collection of isolated islands. So what we mean here by the term ‘utopia’ in relation to international society and, more exactly, international law, are the notions, objectives or principles that are, in the eyes of those who uphold them, on the one hand transcendent in nature, depending on their content, and of an absolute and universal value; and on the other, a demand or claim that has to be met and implemented, with no particular reference to a given method of establishing the concerned law, and independent of any specific procedure; in a way, by the very vagueness and opportunism of the employable means. In other words, while utopia does not have any local definition and has no geographic location, it nevertheless has to have a history (though we will not quote Cioran here) and can be the subject of a process. However, whereas objectives or principles appear to be clear, fixed and immutable, the means by which they are to be achieved are on the contrary uncertain, changeable and even unpredictable. It is therefore the hiatus between the clarity and completeness of the outcome on the one hand, and the indifference to or ignorance about the exact processes by which it is to be achieved on the other hand that characterise utopia, much more than a confinement to the imagination alone. Furthermore, it is the same difference that makes law— from the dual aspect of the content of norms and the way they were established—particularly interesting in the attempt to understand the passage to or impossibility of achieving utopia, or at least the difficulties in the path towards this end. We shall broach this study in two phases. First, following a descriptive approach and established methods, we shall attempt to identify and define

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utopia within the international legal system, which is taken as an organised whole (section I). We shall then raise questions about the functions of utopia in order to specify its role and utility and thereby understand it more exactly within the context of the legal system (section II).

I. Identifying Utopia within the International Legal System The international legal system is composed of norms and subjects. What is their respective utopian dimension?

A. Norms With regard to norms, one could initially be tempted to say that norms are utopian by their very definition. They prescribe as being imperative or simply as optative certain behaviour or types of conduct, which in practice are followed very imperfectly. A view of social relations stemming from the analysis and projection of the norms in force would mostly be fallacious. Who would believe that the United Nations Charter could be held up as the reason for the actual behaviour of its Member States or even the United Nation’s own bodies? This question leads to the identification of what is not utopia in norms, then to the definition of the utopian dimension of norms and finally to an outline of the way this dimension is particularly visible in the international legal system. i. The Normative Dimension In fact, the normative dimension of international law should not be confused with the utopian dimension. What is specific to the rules of law, whatever their system of reference, is the very fact that they can be not applied—that they possess merely potential applicability. From this perspective, there is nothing original about international law. Highway codes, general tax codes and penal codes in no way express the reality of individual behaviour any better than a constitution reflects that of public authorities. It is easy to object to this by saying that the rule of law does not exactly apply, except in case of conflict, and that it has the legal capacity to resist its violation effectively. Far from being a negation of the rule of law, its violation constitutes an opportunity and a means to confirm its existence, through the ritual of affirming its power and by seeking redress for the consequences of its infringement, while at the same time concretely specifying its imperatives and multiplying them indefinitely—a task that more specifically falls under the purview of jurisprudence. The law would therefore be destined to be applied only in case of disputes, and its essential function would be to settle disputes—through deterrence, delineation of the rules, through solutions, through the intervention of judges and/or coercive action.

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The reality of the law would be visible only when law itself is repudiated, due to the resistance with which it would fight any such repudiation. However, this concept remains somewhat optimistic. In a number of cases, in domestic as well as international law, ignorance of the rules does not evoke any notable or useful reaction. Everything carries on as before, as if the legal system were at least partially disconnected from real behaviour. However, this is not the place to question the significance of something that is already well known. We merely need to underline the fact that it is a result of the normative essence of law, and if we wish to consider it tantamount to utopia, international law would be no more utopian in this regard than any other legal system. a. Norms and Reality The relationship between norms and the reality that they seek to govern is in fact much more complex and diversified than a clear separation between what is and what should be. It is true that one of the characteristics of legal norms is that they seek to guide actual behaviour, although that may not be their sole aim. But it is possible without too much oversimplification to identify clearly three major dimensions in the relationship between norms and the reality they are aimed at: a registering or recording dimension, an organisational dimension and a dimension of projection—an ideological dimension in which utopia can be found more specifically. b. Norms and External Data When norms record a factual situation, they take on a somewhat notarial perspective. They take external data into account and are based on a reality foreign to them, one that they do not propose to change but simply make official by incorporating it. Naturally, the dimension of recording or registering is totally relative—whether it concerns physical and/or technical data, itself considered as being external to the subject of norms as such. It supposes an initial selection of the relevant data and options from an entire array of attitudes towards it. That is the case with the civic majority, for instance. We may believe that the practice of citizen rights is linked to the intellectual and physiological maturity of individuals; but the variations of this majority in time and space illustrate its relativity. Further, when we decide on certain criteria in order to define a maritime superpower, it is clear that we would reach very different conclusions depending on whether we take into consideration the length of coastlines, the extent of shipping lanes controlled, the tonnage under the concerned state’s flotilla, its aeronaval potential or even its dependence on maritime resources. It is nonetheless true that once the selection is made, the norm—in terms of its contents—remains dependent on external data and that it merely proposes to record such data in order from which to draw a set of conclusions and lessons. The latter fall under the dimensions described below.

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ii. The Organisational Dimension The organisational dimension of norms is more specifically concerned with the creation of mechanisms, institutions and procedures, which replace spontaneous regulation—or even the lack of regulation—with prescribed conventional order. Hence, this dimension is much more peculiar to written law, even exclusively so, for it can contain both the coherent legal whole necessary for the existence of a subject of law (a legal person) and the rational mechanisms that enable it to function. It is especially important in constitutions and the constitutional acts of international organisations. In such cases it is not enough to rely on existing situations; it is necessary to create purely legal instruments, in the sense that they have only a legal content and do not exist outside that legal substratum. Indeed, what would the Constitutional Council be without the 1958 Constitution or the UN General Assembly without its Charter? These objects are not, however, utopian in any way. Their existence is real and provides a clear though voluntary code of conduct in the international arena. iii. The Dimension of Projection The dimension of projection or the ideological dimension of norms undoubtedly constitutes the utopian aspect of law. It concerns all the representations and intellectual and moral references that dominate and inform the legal system—for instance, the Declaration of the Rights of Man for the French legal system or the aims and principles of the UN Charter for the international community. The legal scope of these norms is in part unclear. The principles they contain have characteristics that can be both transcendental and only partially legal, as illustrated by the long-standing controversy about the scope of preambles in constitutions. The general philosophy, the overall objectives proclaimed and the vision of a necessary and just order are all set against a horizon that is as much an explanation as an exposé of the reasons behind the content of the norms, as the content itself. This philosophy is projected by the norms, first on to other norms and then, through them, on to the reality to which they are intended to provide direction. It is not necessarily found in the dominant norms, such as a constitution or the UN Charter—or in their antecedents, such as preambles or introductory principles. It is to be found in norms of lesser legal value: resolutions (especially those of the General Assembly) or those that emerge, if not after the battle, at least after the specific notions that they clarify—for instance, the resolutions and the effort they make to interpret the UN Charter or the jurisprudence of Constitutional Courts. iv. Some Concluding Observations Up until this point, the arguments put forward have reasoned as if the three dimensions of the relationship between norms and the reality they are aimed

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at could be isolated within the legal system and as if they specifically characterised one norm or other, or a given group of norms. But like a monad, in real life each norm contains and reflects the whole of the system to which it belongs and therefore incorporates all three dimensions, even if only through implicit references to them. All three dimensions could therefore be applied to a microanalysis of each norm. Until now, we have made no distinction between domestic legal systems and the international system. In fact, the various aspects that we have tried to individualise can be found in them, although they may often be combined in practice. However, it is on the basis of the last point that a distinction must be made between them, and it is through it that the profound originality of the international system emerges. In fact, in domestic systems, these three dimensions are intertwined to such an extent that their dissociation is more intellectual than concrete. And that is because there are linkages between them—a certain coherence, a homogeneity that makes it possible to assimilate them. A domestic legal order is based on certain fundamental principles, and its organisation and procedures necessarily stem from them, just as they adapt themselves to the historical, political, economical and social reality that the legal order governs. Democratic principles, applied at the country-level to its demographics, would lead to a certain type of division of constituencies; the duration of electoral terms would depend on historical traditions, etc. This observation may certainly be relative, and the inter-linkages are far from perfect. Thus, the Declaration of the Rights of Man has only partially informed the French legal system. At the very least, there is a dynamic in this direction—a dynamic of coherence, provided through diverse but converging channels. But it was first necessary to acknowledge it as having a positive law value and then to give it an operational, constitutional value, incumbent even on its legislators. And a recent though incomplete step in this direction was made by the Constitutional Council. Once achieved or in the process of being achieved in this way, the utopian dimension fades into the background and becomes less perceptible. It becomes more difficult to identify as such—in fact, it tends to disappear completely. In the international legal system, there are no such inter-linkages. They do not exist either as actual facts or in the form of a dynamic. Everything happens as if the three dimensions—ideological, organisational and documentary—are separate, disconnected and even contradictory. Therein lies one of the aspects of the break-up of the international legal system, as opposed to the unity of principle of domestic systems. And this too is not an accidental or provisional fact. On the contrary, it is due to the nature of the system itself that enables it to fulfil its various functions at different levels. But the immediate consequence of this dissociation is that the utopian dimension, which remains independent and does not combine with the others, remains apparent and identifiable as such.

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v. Some Examples a. The Legal Approach to Peacekeeping and Security The first example is taken from the legal approach to peacekeeping and security. International law contains many rules related to this issue, but they are each based on different, autonomous and sometimes contradictory grounds. We do not need to force the issue in order to find herein the three dimensions we are interested in. The utopian dimension of the legal approach to peacekeeping and security corresponds to disarmament, which is mentioned in the UN Charter but as an accessory and in a subordinate manner. The Charter obeys a logic to which we shall return later in this article—that of collective security. It is essentially in the actions taken by the General Assembly—for instance, through Resolution S-10/2, adopted by consensus during the Special Session on Disarmament in 1978—that the full orchestration of the issue can be found. Resolution S-10/2 attributes all efforts undertaken in the name of disarmament to the general effort for complete disarmament under effective international control. Hence, the utopian nature of the enterprise does not need to be underlined, whether the term ‘utopian’ is taken positively, negatively or neutrally. The organisational dimension of the legal approach to peacekeeping and security corresponds to collective security—the inspiration behind the rules and mechanisms of the UN Charter. However, collective security does not necessarily lead to disarmament and may even be in opposition to it. On the one hand, each state remains in control of and responsible for its own security, and on the other, that state must be able to assist the Security Council in order to launch coercive actions at its request. In fact, the Charter makes reference to the Council’s competence in matters concerning ‘regulation of armaments’ (Article 26), not to disarmament. This system’s failure—which could only be temporary—has led to the disappearance neither of this organisational dimension, which is based on institutions, rules and procedures, nor of collective security. It can be seen, though perhaps in a somewhat weakened form, in alliances like the North Atlantic Treaty Organization (NATO) and the Warsaw Pact, although they are far removed in principle from the spirit of disarmament. The documentary dimension corresponds to rules of yet another type— one that is more solid than the first yet more sporadic and disparate than the second. I am referring to treaties that fall within the general framework of arms control, whether bilateral or multilateral, since they all essentially stem from agreements between the United States and the Soviet Union. The Partial Nuclear Test Ban Treaty (1963), the Outer Space Treaty (1967) and the Strategic Arms Limitation Talks (SALT) Agreements (1972) are some examples. The general underlying logic of the arms control enterprise is based on observations that nuclear deterrence is a

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de facto situation—one that law can stabilise and document, though without changing any fundamental reality. This logic is different both from disarmament—because it is not based on gradual arms reduction but on the contrary assumes the maintenance of nuclear weapons and negotiated parity—and collective security, since the sanctuarisation of partners leads to the exacerbation of individual security, almost to the detriment of the security of others. However, these three kinds of reasoning—the utopian, organisational and documentary dimensions of the legal approach to peacekeeping and security—function in parallel, though at different levels. Or to put it more simply, taking a purely objective approach, one could say that the utopian dimension is multilateral; the organisational dimension is based on the hypothesis of an entente between five states that enjoy legally protected status (ie, the permanent members of the UN Security Council); and the documentary dimension is bilateral, linked to agreements between the United States and the Soviet Union. There is an obvious absence of connections between them, despite the efforts made to bring them closer together, and this makes their specificity clearly identifiable. b. International Law regarding Economic Relations A second example of the way that the utopian dimension plays out in international law concerns international rules governing economic relations. The notion of a New International Economic Order (NIEO) (1975) can be seen as utopian, incorporating as it does abundant and vague objectives of a complete overhaul of these relations in a way that would be more favourable to developing countries. Here, too, the UN Charter does not provide any specific pointers, or barely any; but there are many longstanding General Assembly resolutions on the topic. The various mechanisms set up at the end of or following World War II can be seen in light of the organisational dimension: the Bretton Woods agreements regarding monetary issues and the General Agreement on Tariffs and Trade (GATT) with regard to commerce. In addition, there have been regional solutions, the European Economic Community (EEC) being the most established example. Bilateral agreements and, more dramatically, the projection and extension of US domestic laws at the international level both corresponds to the documentary dimension, as they demonstrate how power politics play to the interests of Great Powers. If we wished to extrapolate on the lessons learnt from these two convergent examples, we could conclude that in its utopian dimension, international law is the law of the weak, which aims to compensate for and correct inequalities; in its organisational dimension, it is the law of equals (though some nonetheless remain more equal than others), based on the principle of the sovereign equality of States—the fundamental organisational principle of international society; and in its documentary dimension,

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it is the law of the powerful, generally sanctioning and consolidating their position and particular advantages. These analyses need to be further refined and nuanced. We stated earlier that the three dimensions are also found in each norm. Thus, within the framework of collective security, there is an utopian perspective (the objective to be achieved); an organisational perspective (everything concerning the Security Council’s competences); and a documentary dimension (the acknowledgement of the privileged status of the five permanent members, which can only be explained by the post-war realities in the field). Another conclusion that one could risk making has to do with the extremely problematic nature of the general rules prevailing in international law. Bearing in mind the way international law is divided up between several different types of logic, the general rules it contains are applicable only in a few cases: its predominant principle is the relativity of situations and rules. Given this definition, the very idea of general rules in international law is utopian in character.

B. Subjects Identifying the utopian aspects of the subjects of the international legal system is a much more complex task. We could suppose that the said subjects are by definition utopian, since they are limited to artificial persons alone (states and international organisations). However, considering utopia as tantamount to fiction would be confusing things. More generally, legal categories have an instrumental nature that falls within the system’s overall logic, while at the same time corresponding to specific purposes. They are not utopian in nature—at least not in and of themselves. On the contrary, certain questions can be raised about the utopian nature of certain concrete subjects within these categories. i. States International law considers that all states enjoy identical status, which they acquire as soon as certain fundamental conditions are fulfilled so that the birth of the state is a legal fact—ie, there must be a sovereign authority over a given territory and with reference to a given population. However, the status of a state is recognised sometimes even in cases in which these fundamental conditions are not met. For instance, the Sahrawi Arab Democratic Republic (SADR) is recognised by a number of states and has even been admitted as a state in the Organisation of African Unity (OAU). So is it a real state or a utopian state? It could be described as utopian in two ways. First, it has not fulfilled the conditions normally required for a state to come into being, as if its birth were based on a new rule—one that, at least for the moment, is itself utopian or at least utopian as a general rule. Secondly, its statehood is only in effect in the case of those other states that have made

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a point of accepting it as such; they are aspiring for it to be something it has not yet truly become. ii. International Organisations The issue of the subjects of international law is even more difficult in the case of international organisations. Their lack of any concrete bases (no territory as such, no subjects, no coercive powers by themselves) endows them with a halo of utopian status, all the more so since there is often a large gap between the scope of their ambitions, the loftiness of their objectives, their projection towards the future and the specific means—both legal and material—that they have at hand. As such, they cannot be seen as utopian, due to the concrete authority of their legal foundations (their constituent charters), their structures, their various bodies, their personnel, their capacity to adopt legal instruments and finally, their legal personality. They can be considered more as producers of utopia than as utopian themselves. They are one of the ways that utopia enters or attempts to enter into legal systems, integrating with them in order to use law for their own ends. (This holds true for the UN system as well.) For instance, the NIEO concept was formalised within the United Nations, and it was the UN General Assembly that promoted and continues to promote general and complete disarmament. If we return to the subjects of international law themselves, which often have undefined contours and statuses, it is the UN General Assembly that produces the majority of them. They are legal poltergeists in a sense, such as ‘peoples’ or ‘humanity’. All things considered, they are more standards than subjects as such, in the sense that they are not envisaged in themselves, abstractly, but always in terms of the way they relate to a certain behaviour that they make it possible to evaluate: ‘peoples’ in relation to decolonisation and independence; humanity, which must be seen as apart from states or in order to characterise certain categories of crimes. Thus, international organisations are more like machines that are used to change power in utopia, by providing alternative mechanisms for states to transform ideologies into instruments or symbols of their power. Is this a phenomenon of dissipation, of the loss of energy? Or is it on the contrary a phase of accumulation and concentration, preceding the concrete achievement of new objectives—first legal, then material? This question raises the issue of the functions of utopia within the legal system.

II. The Functions of Utopia in the International Legal System Utopia clearly has ties to lex ferenda. It always appears as the affirmation or claim of a right. It has an underlying dynamic that tends to inform or

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modify the lex lata—but doubtless more through subversion than revolution, more through gradual infiltration than violent change. Indeed, the deep-seated changes to which utopia aspires can only take place in an unorganised manner and if not invisibly, at least discreetly. At the same time, they are always aleatory: their achievement is uncertain, which means that utopias have the status of pretenders or aspirants rather than conquerors or prophets. This general role of utopia is further underscored by the fact that political projects are usually legally formulated in international society. International relations are largely legal in nature. This is undoubtedly one of the outcomes of UN activities: by the very style of UN resolutions, the United Nations has contributed to the development of the legal presentation of political or ideological positions in such a way that their passage to positive law—from lex ferenda to lex lata—is often uncertain and problematic, and in any case, fairly progressive. Although the legalisation of international relations occurs upstream of mandatory rules, even if it often takes their place, it is not impartial in any assessment of the place of the law in these relations. Utopia naturally fulfils an entire series of functions in this regard. In fact, these functions cannot be reduced to any rigid patterns. Furthermore, they are just as cumulative as alternative. We will examine a few examples to illustrate the diversity of these functions, which can present at two different levels. Some utopian functions are manifest within the legal system, while others have to be seen in relation to the legal system as a whole.

A. Utopia’s Functions within the Legal System Utopia’s functions within the legal system include negation, affirmation and anticipation. i. Negation Through negation, utopia rejects the previous legal rules that it aims to replace. Thus, when the world’s ocean floors are proclaimed as part of humanity’s common heritage, the former res nullius status is contested and its permanence weakened. A transitional period may then ensue, during which—at least academically—the rule’s former status is in a sense suspended; at the very least, it becomes doubtful. It then becomes more difficult for those contemplating exploiting ocean floors for private gains to do so. In any case, they can no longer do so with the full certainty of it being lawful. The feeling of legal safety, which is important for any commercial use of spaces, assets or heritage in general, is therefore achieved. Older rules are not positively destroyed, and their negation can in turn be negated by solid proof that they in fact remain in force. But they are no less weakened and undermined, and the entire relevant legal framework

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becomes uncertain. When rules are challenged, the law itself is in a way put on trial, but the analysis of this phase needs to be refined and developed far more than space in this article allows. As noted earlier, international law therefore incorporates challenges to itself. Its trial takes place at a legal level, within the system itself. The rules have to be changed by using legal means, even if they are not symmetrical with those that were used for the formulation of the initial rules. For instance, there is a tendency to replace a custom with a treaty, and a general rule by a series of local rules that take specific situations into account. Resolutions—in principle, non-obligatory by nature—are used to call conventional or customary mandatory rules into question; and unilateral laws challenge multilateral or even bilateral instruments. Such challenges are, however, inseparable from a process of affirmation. ii. Affirmation Utopia’s affirmative function, whether the affirmation is implicit or explicit, could apply to the modalities by which a law is established. Some authors and countries assert that UN resolutions are mandatory and contribute to the formation of imperative law (jus cogens), ensuring the absolute value of certain principles. But these law-forming modalities are merely instrumental in nature and by themselves only have symbolic value. Hence, circumstantially the emphasis is laid on either the collective or the unilateral, either the consensual or the majority-based, either the universal or the regional. They are intended to promote concepts, rules or principles that are often covered by the ‘New Order . . .’ label. It is the content and the substance that count more than the way in which they are formed. In fact, utopia is attached more to the material than to formal elements of law, to the extent that it assumes the effective authority of the rules and the fulfilment of conditions laid down for their application, even before either of those has come to pass. iii. Anticipation Let us look at two examples of the anticipation function of utopia. a. The Formation of Law A technique of contagion or extension has often been observed, particularly in resolutions, consisting of associating or placing undisputed, established rules—such as the provisions of the Charter—on the same level as rules the status of which is more undecided and which are treated like the former, by implication or by juxtaposition. Anticipation consists of presenting as already achieved what is in fact in the process of formation, of placing oneself at the end of a process that is still underway, of treating it as if it were already completed.

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b. Fundamental Rules As for fundamental rules, one example of this anticipation function is the right to self-determination. There is a certain ambiguity to this concept: deciding one’s own fate involves expressing free choice; it also implies that independence is the only true accomplishment of the freedom to decide one’s own fate, because it is permanent one. And yet in the United Nations, the emphasis has always been the result, to the detriment of the process of deciding one’s own fate. The latter is seen as legitimate only if it leads to the desired result. In a sense, it is even useless, as it is the result that is essentially considered necessary. In these conditions, the people who must decide their own fate are called upon to organise themselves into a state—one that is actually a virtual state. Thus, anticipation must be employed in order for their status as a state to be respected—although statehood has not yet been established, it is necessary for them to be treated as a state in statu nascendi. That is why it is considered an obligation not to undermine their territorial integrity, for instance. Hence, the ‘people’ are by anticipation likened to a state, and utopia has often played a creative role in this regard.

B. Utopia’s Functions in Relation to the Legal System as a Whole Utopia’s functions in relation to the legal system as a whole include transfer and derivation. i. Transfer Through transfer, utopia makes it possible to make fundamentally domestic societal problems the responsibility of international society and international law. These problems are generally ones that individual societies do not seem able to solve by and for themselves. The best example in this regard is development. We are in no way asserting that the issue of development is not international in nature and that the concerned countries are wrong to expect, advocate or attempt to define and obtain international solutions, involving a special kind of cooperation between states in financial, commercial, industrial, technological, etc fields. It is clear that the reconstruction and subsequent development of Western Europe after World War II was accelerated by international mechanisms, and after the Marshall Plan, the legal procedures of different communities played a substantial role. Therefore, the call for international solutions does not in essence constitute a transfer, in the sense that the term implies the dismissal of responsibility and action on the one hand and the displacement of the burden to other forums on the other hand. If there is a transfer, in such cases it occurs in the sense that the enterprise remains unfinished, incompletely formulated and insufficiently accepted; and also in the sense that its adaptation to its objective is not established, as it

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sometimes leads the concerned countries to conceal their internal shortcomings and dodge their own responsibilities. Hence, development law includes a profoundly utopian dimension. Its remnant is perhaps a right to development, indisputable in its principle but imperceptible in its means, apart from the rare regional attempts initiated. ii. Derivation Derivation extends the preceding function of utopia. It consists of overestimating the role of law, of expecting more from a legal solution than it can give. The advantage of such a method is indisputable with regard to peacekeeping and security. It is based on the use of all legal pathways, even unorthodox ones. It mitigates disputes by emphasising the pursuit of agreements. It tends towards changing laws via the law. It postulates that amendments of the rules of the game are effective in the short term and may lead to real transformation in the relations governed by them, and that the law can precede the facts and change them proactively. However, this kind of legal reformism soon reaches its limits. It tends to get trapped in wordiness and incantations. It may achieve some results, but these remain frustrating and partial, leading to the law being put on trial in the process we have described above, rather than being the harbinger of a shining new dawn with new rules. The Montego Bay Convention on the Law of the Sea, signed in 1982 after ten years of work, is an illustration of the difficulty of the process: its coverage of the complex issues is incomplete, and there is increasing uncertainty regarding the rules stemming from the Convention.

III. Conclusion In conclusion, the coexistence and divisions between the normative, organisational and projectional dimensions of international law can clearly be seen. The documentation of different power equations remains just as significant as both the rational organisation of legal relations and the formulation of new orders with lofty ambitions but inadequate means. In fact, while utopia in the international legal system often makes reference to transcendent, absolute law, it tends only to produce soft law that is watereddown and short-term.

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8 Some Observations on International Legal Norms*

Q

UESTIONS OF DOCTRINE and theory in international law do not enjoy a good reputation. They echo doubts about the very existence of the discipline and reproduce assumptions at once archaic and mutually irreconcilable, thereby providing new fodder for endless academic controversies. One is better served by examining the evolution of positive law through its enrichment and growing technicality. Working under the aegis of governments, international organisations and international legal bodies, internationalists affirm the operational and practical nature of their reflection. Doctrinal agnosticism is a sign of intellectual availability and open-mindedness. That being said, is it not fair to consider doctrinal considerations and a tendency towards abstraction and systematisation as part of an internationalist’s regular baggage? It is not in spite of its theoretical difficulties that one is intrigued by the field of international law; indeed it is precisely because of those difficulties. In this respect the internationalist must do constant battle with two nostalgias: first, the model created by Hans Kelsen; second, that reference point of the supposed perfection of domestic legal order. How to avoid becoming lost in Kelsen’s normative pyramid? Its lines are pure, its surfaces reflect outside light; one might find a thousand different ways to its centre without impinging upon the perfection of its principle. Its meaning remains enigmatic and adds a spiritual dimension to the geometric object; it originates in a single point and spreads outwards in clear diverging lines; it is solidly rooted in the earth and extends upwards to the heavens. Unity, multiplicity, hierarchy, formalism: referring to the army, to the Church, the legal state, liberty and obedience, a principle of the resolution of contradictions, Jean-Jacques Rousseau, an internationalist utopia—in all cases the fundamental norm remains unassailable. Similarly, how can one escape from the idealisation of domestic legal order—from the rigour and precision of its norms, from the perfection of its methods of application, from its codes, its judges, its reassuring certainties, from its entire might?

* Previously published as ‘Quelques observations sur les normes juridiques internationales’ (1985) 4 Revue générale de droit international public ( RGDIP) 903–28.

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It is difficult indeed to tear oneself away from such fundamental images in order to plunge into a legal practice much more complex, composite and confused—even incoherent. The study of the international legal order—the ensemble of acts and norms emanating from the subjects of international law and applying to their relations—seems simultaneously to call and to deceive those who seek a unifying principle to integrate and explain the legal phenomenon. Internationalists often live this contradiction. Possessed of a spirit valuing order, rigour, and regularity, they study a field marked by diversity, incompleteness, conflicts threatening peace, and inflexibility towards development. One frequent result of this situation is an unhappy conscience, or at least deep worries, which make of internationalists virtual revolutionaries— discrete subversives, carefully surveying the evolution of positive law for cracks and, ultimately, ruptures, by means of which they might seek to bring into reality their federalist, quasi-ecumenical dreams. But these dreams themselves soon appear suspect: both because they contradict the reality of international law as it exists and because they correspond to the projection of special interests. Contradictions between models appear, adding to the initial cleavage between the model of the law and its analysis; these contradictions cast into doubt the validity of the models themselves. The fact that states, especially young states, tend to embrace such models and redefine them in function of their own aspirations serves to accentuate this development. As such, internationalists are at risk of being sealed into their dilemma. They cannot renounce doctrinal systematisation without abandoning their calling; but to adhere to a model is to become an activist, as it is difficult to separate the normative value inherent in a model from its explanatory role. Internationalists must therefore limit their ambitions. Without renouncing systematisation altogether (after all, the road to knowledge is paved by theory), they must find normative neutrality, in the sense of refraining from opposing ‘good law’ to a supposed ‘bad law’. Just as an internationalist must not allow himself to denounce an apparent erosion of classical international law for the benefit of a new law, perverted and weakened, so must he avoid the opposite pitfall of proclaiming that the old law was nothing but a form of oppression, whereas the new order alone can actualise the aspirations of humanity. He may certainly take these viewpoints into consideration as external variables, useful towards the understanding of law and its evolution; but his approach will be more fruitful if, as jurist, he stays above the fray. It is true that internationalists are dependent upon environment, but honesty—and not objectivity—must lead them to distance themselves from that environment as far as possible, rather than passively abandon themselves to it. This approach does not aim at originality but to contextualise what is to follow. The object of these schematic observations is to attempt to bring some

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simple and complementary ideas to the analysis of international law as a normative ensemble. They underline the uniqueness of the international legal system with respect to other legal systems. They also underline its faithfulness to itself, since in developing itself further, it only brings into being its own potentialities. These observations strive to draw attention to factors sometimes considered as secondary, or even as conveying the infirmity of international law, since these factors in fact express the very nature of that law. The first of these factors is the virtual absence of general rules and the limitations and varying degrees applying to the otherwise obligatory character of norms—that is to say, the relativity of norms, which will be examined below in section I. The second factor lies in the chance and complex conditions that dictate the changing of rules—in other words, the mobility of norms, which will be discussed below in section II. Finally, a third factor is the homogeneity of norms as a result of their common origin, the engagement of states; this will be the subject of section III.

I. The Relativity of Norms The principle of norm relativity is without a doubt the most defining and most important principle of international law. It is also the most unsettling for those who have undertaken their studies with ideological or moralist preconceptions, or even for those with a strictly intellectual conception of the field. What it means is that norms are fundamentally different from moral imperatives—the latter being universal and permanent—and that norms are not necessarily subject to any principle of logic, for instance that of noncontradiction. Norms cannot be classified in the spirit of either formal logic or the Ten Commandments—or even on the basis of a hierarchical principle common to various domestic orders. The term ‘relativity’ can be interpreted in various ways. In its first interpretation, the term means that international law is not applied uniformly with respect to its various subjects: each of these subjects can, within a certain framework, develop its own conception of that law. There are as many states of international law as there are states in the international system. The norms that those states accept, the situations they recognise, the consequences in their domestic orders that they draw from international norms— all differ on a case-by-case basis. Notwithstanding the general principle of the precedence of international law over domestic law, it is left up to each state to define the modalities of the application of international law. This is done in dramatically different ways. However, we will not dwell on this latter point, which deals with the relation between international and domestic law. A different interpretation of the term ‘relativity’ contrasts it with ‘generality’. This approach leads to questions about the existence and scope of general rules in international law and to observations concerning the

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relativity of the scope for the application of international norms (which we will look at below in subsection A). But relativity can also be understood as relating to the degree of obligation under international law. Such obligation is variable, allowing for different gradations and without requiring any clear hierarchy between the various degrees.

A. The Relativity of the Scope of International Norms We will begin our analysis by reviewing the different categories of norms enshrined by positive law, before going on to characterise relativity in this context by noting its limitations and fundamentals. Let us illustrate the relativity of norms through some brief examples. Notwithstanding the reference in Article 38 paragraph 1 of the Statute of the International Court of Justice (ICJ) to ‘the general principles of law recognised by civilised nations’, there is no fully universal treaty in existence—not even the United Nations Charter. The principle of relative effect is sometimes contested, but it is well enshrined in law, notably in Article 38 itself (‘international conventions, whether general or particular, expressing rules expressly recognised by the contesting states’), as well as in the Vienna Convention on the Law of Treaties. This principle rules out the immediate extension of treaties to third parties. Thus the expression of ‘general treaties’ is at best an approximation—a limited hypothesis that remains a mere potentiality. The same applies to those derivative acts that take the form of resolutions by international organisations. Regardless of their universalist tone—drafted as though applicable to the urbi and orbi of the international community— such resolutions cannot have any direct effect upon states other than those members of the international organisation in question. And even among the latter, the text will not apply to those Member States able effectively to contest the validity of the resolution. As for actions and decisions taken by international courts—arrests, judgements, opinions, sentences, etc—the extension of their legal force remains contained by the principle of relative authority over the judged issue, whatever the apparent generality in their argument or the abstract grounds motivating such actions and decisions. General principles of law also raise another question, independent from their subsidiary character. If we assume that the term ‘civilised nations’ does not have any precise ideological or discriminatory meaning, then such nations must be defined by taking into consideration the domestic orders of the ensemble of states, that is to say, of organised juridical systems. But here we are interested in distinguishing the generality of principles from the norms themselves and from the specific characteristics of the subjects of international law in question. With respect to the subjects of international law, the principal entities in question are the ICJ, which is tasked with applying principles in a specific

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instance, and the states that are party to the Statute of the ICJ. The latter, however, are only affected through the intermediary of the Court: should those states apply the principles directly in their mutual relations, then what is at play is an instance of customary international law. Generality, in short, is very approximate—and indeed very relative. As for the norms themselves, if they are even applied (since the usual fate of a general principle is that, as soon as it is recognised and applied, it becomes customary law), case law has tended to place emphasis on their relativity. Thus in the affair of the Barcelona Tradition, the ICJ referred implicitly to general principles relating to public companies. It is clear that this type of principle can only originate in and apply to states that host such organisations. Unilateral state actions for their part are likewise subordinate to the same relativity of principle. In cases in which such actions are in conformity with the rule, they are valid for all those who accept the rules; in the instance such actions stray from the parameters of the law, they are only opposable by those states who agree to such parameters in the first place. In the matter of nuclear testing, it is clear that the ICJ set forth the theory that a unilateral act might embody a commitment ‘vis-à-vis the international community’ and thereby enjoy a universal reach. But such an affirmation is supported only by the relative authority of the specific matter under consideration and does not necessarily benefit from it. Moreover, the general nature of the scope of a unilateral action is always a limited case, and one can make the point that the general scope of such an action remains a unique application of a relative principle. Custom, that great fount of international law, lies at the heart of the problem of general norms. The general character of custom appears even to be of common law, since regional or local customs are often presented as though they were a (subaltern) variation on the general rule. But this generality can also be quite nuanced. First, general customs normally apply only to states— as it is from the consent and practice of the latter that they originated—and not to other categories of subjects of international law. International organisations in particular are essentially subject to the unique regime spelled out in their founding charters rather than to general custom. Second, should one make an attempt to determine the precise content of these general customs, they quickly reveal themselves to be quite rare—even ambiguous. One might say that these customs benefit from a questionable presumption of generality; indeed that they are only approximately or hypothetically general. Let us take the example of the status of the state, whose legal bases are, though partially codified in the UN Charter, customary in nature. Guy de Lacharrière has rightly pointed out that the principle of sovereign equality is not impregnable, and it is known that the development of a principle of specificity of states, which would highlight their concrete situation, is highly questionable. States are virtually sovereign and equal; but in their legal

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practice they have accepted a certain number of concessions that weaken the generality of the principle. The examination of even so sacred a principle as Pacta sunt servanda can lead to some doubts about that principle’s generality. Scholars of international law are sometimes tempted to derive the entirety of international law from this basal doctrine and to see in it an absolute generality of application. But in reality this principle seems to apply only to treaties—that is to say, to a specific category of legal acts—and not to the entirety of legal acts. Unilateral acts, as the ICJ indicated in the nuclear testing affair, are not subject to the principle, as the latter draws its legitimacy from good faith (another principle to which we shall return shortly). For customary law, reference to the principle of Pacta sunt servanda is not indispensable, though it is certainly not unthinkable. Thus it seems impossible to try to base international law on a single principle, as is the case for domestic law (which is entirely contained within the notion of state sovereignty). The principle of good faith strikes us as being the most general principle, notwithstanding the fact that its instrumental character is relatively weak. Pacta sunt servanda de bona fide is an application and an implication of this principle, subsuming not only unilateral action but international custom, as it governs the ensemble of the behaviour of subjects of international law. Of course, the very existence of general custom is not in question. A number of customs are stipulated in Article 2 of the UN Charter. Others deal with, for example, the governance of maritime domains. But such customs remain the exception rather than the rule, their universality only a fringe example. Generality does not mean anything more than an aptitude for or a calling to govern the totality of the subjects of international law. But as we know, we must distinguish between the existence of a general rule and its opposability. A state may always indicate, through its attitude during the formative stage of such a rule, that it does not accept the rule. That state may not prevent the formulation of the rule, but it will render that rule not invocable in matters concerning itself. Thus the generality of principle does not pose any real obstacle to its relativity. There is another important limit to the concrete generality of custom: the largely established possibility to derogate from the rule through specific accord. This point relates to the intensity of obligatory force, and we will return to it presently. It leads to the question as to whether the only truly general rules cannot be principles of the type of jus cogens. Referring to the conception of jus cogens as set forth by the Vienna Convention, we find that generality is a constituent element of norms themselves, since the latter must always originate in ‘general international law’ (Articles 53 and 64). Clearly, this insistence on generality is very important for the notion of jus cogens. Indeed this insistence is a clear sign of an effort to transcend congenital relativity in order to resolve the inherent tension in international law between relativity and generality in favour of the latter.

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But, without at this point analysing the various controversies and uncertainties surrounding the notion of jus cogens, it behoves us to formulate two reservations, or interrogations, with respect to that notion. First, though the formative process of a rule of jus cogens need not be entirely comparable to that of a customary rule, one can certainly make the same observation for both as to what concerns generality: it is impossible to merge generality with universality, existence with opposability. Here again, generality is but a normative calling, a theoretical relevance to all subjects and all situations. But this does not prevent the non-recognition of a norm by one or more states, regardless of whether such a norm be general or peremptory in nature—for instance, through a rejection of the very principle. Under these conditions, it is difficult to see how one might attempt to impose respect of a norm in any way beyond verbal exhortation. Second, it has not been universally accepted that the notion of jus cogens applies with respect to unilateral acts, which lie beyond the law of treaties governed by the Vienna Convention. Both the generality and, it should be noted, the effectiveness of such norms are affected by this. What is the point of proclaiming the universal and absolute nature of certain fundamental human rights—in other words, the absolute impossibility of any derogation—if these rights do not apply to unilateral acts? This observation highlights the fact that generality is an indispensable constituent element for the notion of jus cogens, not only in terms of subjects but also in terms of acts. The various examples outlined above lead to the conclusion that international norms are fundamentally relative in nature. We do not mean to deny the existence of permanent tension within international law between relativity and generality. But we wish to highlight the fact that while a number of norms do have potential or hypothetical generality, this generality is not fully achieved—its achievement must at best be an approximation. Parallel to this conclusion, we note that the principle of relativity itself must be ‘relativised’—for while it appears to be the dominant tendency of norms, it is not the exclusive one. There is no defined legal statute outlining any principle of relativity; it can be formulated only by approximation and through systematisation of specific solutions. It arises from the conditions surrounding the formation of law and from the pre-eminent role played in that formation by state consent—that is, the commitment of states. We will return to this last point presently but should note here that this principle of relativity does not preclude the existence of a principle of homogeneity of norms. It is possible to have homogeneity without having unity.

B. The Relativity of Legal Authority There is another dimension to the relativity of norms—a dimension arising from the differentiation of the degree of legal force possessed by differing norms. Here we do not mean to distinguish between obligations as a

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function of their content—between obligations to act or not to act, to negotiate, to conclude, to use certain means, to obtain certain results. The possible permutations of such obligations are virtually limitless; they can be multiplied, aggregated or reconstituted as a function of the preference of the author or the need of the user. They remain largely doctrinal in nature; their borders are unclear, and they can find only partial nourishment in positive law. Positive law itself appears to be much more empirical, essentially resting upon a distribution or allocation of competencies. Norms authorise the subjects of law to exercise a given defined competency by fixing the conditions in which that competency may be exercised or by prohibiting certain forms of behaviour. Our goal here is to try to approach the diversity of the intensity of norms—the gradation of their legal effects. The latter are indeed highly variable, and this variability does not seem to follow any general rule of a readymade category. Hence the difficulty of employing precise terminology and of drawing some sort of rigid classification: instead, writers employ the colourful if rather vague terms ‘soft law’ and ‘hard law’. Attempts might be made to draw further distinctions emanating from this starting point. For instance, the authority of a norm including a mandatory arbitration clause, subject to an obligatory monitoring regime for the subjects it binds, is better guaranteed than those norms the interpretation of which is dependent merely upon an accord between the parties in question. But it would be risky to purport to see the bases for general classification in such differences. The distinctions maintained here do not therefore pretend an exhaustive portrayal of the diversity of positive law; rather they intend simply to illustrate this diversity and the relativity of its legal intensity based upon certain classic examples. Without attaching any overly rigorous meaning to our terminology, we will differentiate between norms with reinforced authority, norms of common authority and norms of limited authority. i. Norms of Reinforced Authority The concept of a norm of reinforced authority immediately brings to mind jus cogens, as well as the various controversies raised by the notion of peremptory law—controversies ranging from the origin through the application to the function of such law. Jus cogens leads, in very murky legal waters, at minimum to the nullification of treaties and possibly even to specific forms of an international responsibility to act. Beyond any particular subject matter, it aims to protect the interests of the ‘international community of states as a whole’, from which that norm of course originated. But jus cogens is not the only norm to take this holistic approach. Others, though more narrow and less rigorous, can also lead to nullification. But these protect only the particular interests of certain subjects, such as the vices du consentement aux traités, which can result in the voiding of contracts.

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Theoretically speaking, peremptory norms bring about the absolute nullification of treaties they contradict, this absolutist effect being justified by the nature of the protected interest, which is a general interest. In practice, however, any such nullification is likely to be only relative. For this to be otherwise, two conditions must be met: all subjects must accept the very notion of jus cogens; and the recognition of a violation of the norm must be made by all subjects and understood to apply against all. Neither of these conditions has yet to materialise. Adding to the concrete difficulties of determining the precise content of jus cogens (which is, as Professor Reuter has aptly put it, only a constitutive mechanism1) is an explanation of the relative failure of peremptory norms, whose very low level of use in positive law has been highlighted by Professor Weil.2 In all likelihood the invocation of jus cogens would lead to contradictory legal claims, with no satisfactory resolution. Other norms that may lead to the nullification of contrary acts aim to protect the sovereign competencies of states. This is the case with vices du consentement, as well as when member states of an international organisation contest the validity of a given international organisation’s resolution and refuse to take that resolution into consideration. One might also mention here the habit of states to declare null and void certain acts taken by third parties, when such acts are considered to threaten sovereign competencies. These three occurrences are intended to protect different interests. In the case of the vices du consentement, it is the particular interest of the state offering the reservation that is relevant. In the case of resolutions of international organisations, it is the interests of those parties to whom the resolution was targeted and who can reject that resolution when they exceed the competencies of the issuing body. In the third situation, it is the interests of a third party, with respect to unilateral or conventional acts, when such acts appear to affect the sovereign exercise of that party’s sovereign competencies—for example, through the modification of a previously recognised situation or the continued existence of a situation that party had previously denounced or condemned. It is clear that any such nullification can only be relative, and when proclaimed by isolated states, it must lead to the noninvocability of the act in question, without binding effect on third parties. ii. Norms of Common Authority Broadly speaking, norms of common authority are those norms the violation of which exposes the violating subject to the application of substitute norms—first and foremost, those that bring the state’s responsibility into 1 P Reuter, La Convention de Vienne du 23 mai 1969 sur le droit des traités (Paris, Armand Colin, 1970). 2 P Weil, ‘Vers une normativité relative en droit international’ in P Weil, Ecrits de droit international (Paris, Presses Universitaires de France, 2000).

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play. They are obligatory in this sense only; and technical reach should evidently not be confused with moral value. Each subject can in effect choose, on the basis of rational calculation, to ignore its obligations and effectively buy itself a violation of law—or at least to risk paying the price for its noncompliance. But this broad scope of obligation can be quite diverse in its application and is indeed subject to various gradations. This fact can be confirmed even within a single category of norm, for conventional norms contain obligations of varying intensity. Such a norm could, for instance, grant an organ such as the UN Security Council the competence to recognise a violation and to draw up coercive consequences; it could grant the Security Council in concert with the General Assembly the right to expel a member of the UN for repeated violations of the UN Charter—a proceeding that would subtract from the recognition of the value of individual Member States, unless that state be a member of the Security Council. Conventional norms might also claim pre-eminence over all other obligations, as is the case of Article 103 of the UN Charter. Conversely, a norm might declare itself to be subordinate to other obligations—as is the case with the Vienna Convention of 1969 on the Law of Treaties, generally speaking, since most of its provisions are of auxiliary nature. The same situation holds in most instances for customs, where regional or local customs often derogate from general customs. The same diversity is to be found in the relations between norms of differing categories, though here we may be engaging in some oversimplification. While jus cogens may in theory apply pre-eminently, treaties and customs are of equal legal value—and the settlement of conflict between them usually involves the application of more supple principles, largely as a function of the specific case at hand. One might, for instance, defer to the most recent norm or the most specific norm, depending on the intentions of the parties involved. Thus the most common solution leads to preferential application of a particular norm, following a logic exactly the opposite of that used in domestic legal orders. In domestic law, the hierarchy of norms means that particular rules in violation of general rules are supervened and eliminated, following the principle of coherence and unity of the legal system. In international law, on the other hand, a principle of customisation predominates. First, contradictions between rules are not necessarily resolved through the victory of one over the other, the defeated rule then becoming invalid; rather such contradictions are resolved through a more simple process of prioritising the application of conflicting rules. Second, specific rules almost always have priority over general rules. This means that the latter tend to occupy little more than residual space, the grey zones uncovered by special regimes, though they may remain important in theory. The thorny issue of jus cogens aside, it is easy to customise international law, to regionalise or ‘bilateralise’ it. The resulting norms—specific, particular, diverse and dis-

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parate—thereby become at once more numerous and more solid. This customisation of international law, following a non-dogmatic logic of relativity, allows us to extend to general rules that aphorism of Jules Renard about general ideas: ‘they are so-called because nobody uses them’. iii. Norms of Limited Authority Norms of limited authority are prolific today and frequently attract the attention, suspicion and disdain of legal scholars. Are they to be categorised as legal acts, to be integrated into the normative ensemble that makes up international law? Do they enrich international law, or do they instead constitute a regrettable dilution of it? Are they sources of progress or of confusion? There are a wide variety of opinions on these questions—at times insufficiently developed—which are variegated and constantly evolving. We shall limit ourselves to a few remarks here. Although the resolutions of international organisations (particularly those of the UN General Assembly) generally leap to mind under this category, such norms are in fact more diverse and older than those organisations. Consider the case of political accords and so-called ‘gentlemen’s agreements’. It might even be considered that the ‘general principles of law’ cited in Article 38 of the ICJ Statute stem from this limited authority. A number of categories could therefore be considered here. Nonetheless, acts of international organisations do lie at the heart of this problem due to their number and scope. It is generally conceded—apparently in conformity with positive law— that such norms are not ‘obligatory’ in the aforementioned interpretation of that term. Dissenting views on this issue, notably that of M Bedjaoui, are rare. Only through roundabout routes or complementary considerations (such as the interpretive or declaratory character of such a norm, or its belonging to a customary process)—in other words through an indirect approach—can such norms be considered as having obligatory scope. In any event, such reasoning must draw a radical distinction between the norm of the act (the initial norm, tied to the act in question) and the norm derived or implied from it, which draws authority from a source outside the act. Nevertheless, that a judge (domestic or international) might refuse to take such norms into consideration directly does not suggest that they lack any legal effect or utility. They permit, for instance, the development of normative frameworks specific to international organisations and help to flesh out the legal order of those organisations. More generally speaking, the very fact that their validity is contested suggests that they are not without effect. It should also be mentioned that the normative ensemble is not limited to what is applied by judges. A perspective centred on litigation is particularly narrow and fallacious in international law. Even the contemporary revival of international courts must not lead us to forget that international law is

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not, in its essence, determined at the judicial level. Though jurists may rue the fact, international law is not created to serve their interests: it should not therefore bend itself to their assumptions and categorisations. The vitality and constant development of these norms suggest that they perform a valuable service for the subjects of international law. How could one otherwise explain the care with which leading states devote themselves to the drafting of resolutions or those states’ concern with consistency in voting patterns? The utility of these norms is, moreover, ambiguous. Such norms can channel a normative will towards simple declarations of intentions, or they can represent foreshadowing, anticipatory steps, buildingblocks towards something greater. The repeated recourse to such norms can be interpreted either as a sign of weakness or as a confirmative insistence. Their specific content aside, such norms appear as a factor in the increasing recourse to law in international relations. They cover these relations with a connective fibre; they provide them with a legal vocabulary and reasoning. Unquestionably, such norms play a shaping role for the environment in which international relations occur. One might choose to see in such norms nothing more than a façade, a Potemkin village masking an underlying lack of substance. This would be to go too far. For these norms contribute towards formalising, enriching and renewing legal concepts. They sometimes deal with new concepts, such as the common heritage of humanity or a new international economic order. At other times they elaborate upon more staid concepts, lending them new life or new legitimacy: consider for example the notion of sovereignty. Furthermore, such norms rest upon rule-based procedures for adoption and are therefore the product of an organised elaboration of law—an elaboration frequently more rigorously undertaken for these norms than for treaties or evidently in the case of custom. Lastly, even if we were to abandon a static conception of norms, it must be conceded that resolutions of international organisations play an important role in the normative process—be it customary or conventional—and thus contribute to the suppleness of international law.

C. Provisory Conclusion There is convergence between the two relativities of legal authority and scope for application. The normative dissipation of international law stands in stark contrast to the normative concentration of domestic law. A decree regularly issues benefits, in a certain fashion, from the entire force of the legal order: it accumulates the different degrees of authority and internalises them with respect to all the subjects it targets. An international norm, on the other hand, must always be understood in isolation: it constitutes a specific case, in its generality as in its legal authority. The generality and authority of such a norm derive from elements specific to that norm but are

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also dependent upon the attitude of the subjects of law that it affects. International law therefore lends itself above all to a vision of law that is not cumulative but rather indefinitely analytical.

II. The Mobility of Norms The modification of international norms is a much more complex and uncertain operation than any similar effort under domestic law. The latter may be amended at any time through binding unilateral acts. Of course, in practice, the modification of domestic legislation frequently faces a number of obstacles; but there is no purely legal obstacle to be overcome so long as the relevant organs act within their legal competencies as determined by the sovereign authority of the state. It is a different story entirely in the international order. Here, modification of a rule presupposes in principle the agreement of the subjects bound by the rule to be modified. There is therefore a powerful conservative inertia at play. Revolutionary rhetoric notwithstanding, it is the status quo that tends to carry the greatest weight in international society. Moreover, the process of modification of an international norm does not necessarily lead to that norm’s replacement by a new one. It is quite possible to find oneself involuntarily at an intermediary stage in which an old rule, contested and battered, is weakened and partially rejected even before any new rule can be enacted to supersede it. For while the quest for general rules (a term to which we apply the relativity outlined above) has not been altogether abandoned, it is necessary to operate by the intermediary of a series of individual actions, often of limited scope. Before any broad consensus can be reached, a stage of contestation and reconstruction is necessary. This stage is most often expressed through unilateral actions. Drawing an analogy with domestic law, one might say that this stage bears resemblance to the French Fourth Republic. The stage of contestation is characterised by a series of crises, analogous to the ministerial crises of that Republic; indeed one might say it exists in a state of permanent crisis—a situation that does not, however, preclude the continued functioning of the system. In fact this state of crisis even constitutes one of its defining features. The modification of norms is subject to a sort of dialectic between individual behaviours and general rules, between the unilateral and the general. The outcome of such modification will furthermore not be as simple, clear or direct as it would be in domestic law. In a domestic order, norms are in principle derived from a determined and exclusive legal category. Such a norm might be, for example, of a constitutional, legislative or regulatory nature; but it would not be all three at once. It is of course possible that there could be some degree of overlap between these categories. Remaining within the sphere of French domestic law, we find that legislative principles can be

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integrated in constitutional provisions, and the line separating a law from a regulation (as defined by Articles 34 and 37 of the 1958 Constitution) is not exactly distinct. Nonetheless, it is evident that this possibility represents an exception and not a principle underlying the functioning of the domestic system. In the international order, by contrast, this cross-boundary migration of a norm—more precisely, its evolution—is a common technique of law. Indeed it is the ideal method for the modification of rules, as we shall demonstrate below.

A. The Dialectic of the Unilateral and the General Here we are examining the conflictive process whereby the unilateral acts of subjects of international law contribute, simultaneously or successively, to the dissolution and reformulation of rules. The relationships between these various unilateral acts on the one hand, and between said unilateral acts and the rules to be changed on the other hand, can be quite complex. i. The Dual Trigger of Unilateral Acts A unilateral act, whether it be undertaken by an isolated state, by a group of states or by an international organisation, can be considered as having a dual trigger. One can choose to put the emphasis on either one of these two aspects. First, the act aims to affirm the legal position of its agent(s) when faced with a given concrete situation. Here the act maintains one of two relations with the general rule in question: either it applies that rule by referring to it; or conversely, it derogates from it. Next, the act takes a position on the general rule itself. If that act is a simple application of the rule, then it consolidates it—reinforcing the rule by making it more precise and becoming a confirmative element of practice. If, on the other hand, that act transgresses the rule, again there are two possibilities. The act may present itself as a simple exception from the rule, which calls into question not the existence of the rule but only its scope in a specific instance. But the act can also reject the rule outright, by claiming justification on an alternative legal basis, for which the act itself serves as both illustration and proof. All of these techniques have seen application in recent years, notably in the areas of maritime law and nationalisation. Like any other subject of international law, states try through unilateral acts to reconcile their competencies with their interests. Beyond that, they also try to project their own conception of a broader interest: that of international society as a whole. The link between the two aims—protection and projection—is clear, because the subjects of international law tend to value order over disorder, even though attempts to create a new order often result in greater disorder. The consequences of a unilateral act depend largely upon the reactions provoked by the individual behaviour the act expresses. Acquiescence to the

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act could carry more or less weight. If the acquiescence concerns the new general rule underlying the act—and not simply the act itself—and if that acquiescence is largely obtained, then the new rule could well be considered to be formulated or at least to have begun its process of formulation. If, however, the acquiescence accepts the act merely as an exceptional situation, with no bearing on the validity of the rule itself, or if that acquiescence is made only by a limited number of subjects, then the effects of the unilateral act will remain limited to the specific situation in question. Subsequent unilateral acts are thus taken in reaction to the first, developing and making gradually more explicit the initial act’s relationship with the general rule. This is likely to result in a rather confusing situation in which a variety of contradictory legal claims are made from various quarters. If no recourse to a general rule is possible (which is of course highly likely), then one finds oneself in a sort of procès-verbal of contradictory assertions whereby each remains within its own sphere of legal effect and may or may not be able to coexist comfortably. ii. The Relevance of Unilateral Acts Unilateral acts that play a role in this dialectical process can originate either from states or from international organisations, including courts. Certainly resolutions of international bodies are in some ways quite limited: they cannot upset a conventional norm, for instance, let alone customary law. But their dissemination does serve to reinforce such norms and customs when they support them—and likewise to weaken those norms when they contest them. While a majority of member states in an international organisation cannot impose a modification of norms through resolutions, it must be remembered that an isolated state has even less ability to do so. To deny such resolutions any relevance whatsoever would be to tie oneself down with excessive formalism. After all, such acts provide a good deal of what one might call the energy or dynamism of legal claims. There are two possible forms for such acts, not necessarily cumulative: forms of power and forms of pertinence. Power can come as a result of the support of a majority of states, especially when that majority approaches unanimity. But it can also be the purview of an isolated state. Taking the example of maritime law, one might identify a rough balance in the factors essential to the evolution of that law between the pressure exerted by newly independent states on the one hand and the United States on the other. ‘Relevance’ is a concept no easier to pinpoint from a legal point of view. One might attempt to do so by defining it as a function of consequences— that is to say, as a function of its proclivity toward generalised application, of its capacity to formulate norms that express the common interest and are therefore accepted and consolidated by a broad consensus. Certain unilateral

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acts seem to be particularly well endowed with ‘relevance’, notably certain decisions of the ICJ, which have led to the strengthening of both collective acts and general rules. Take for instance the law of treaties, with its rules relating to reservations; or the law of the sea, insofar as it concerns territorial waters and the continental shelf; or the legal personality enjoyed by international organisations. These observations relating to unilateral acts are equally relevant to bilateral and even regional treaties. As Professor Michel Dehaussy has noted, such treaties have the appearance of unilateral acts under general international law or with respect to third parties. It is clear that any norm contradicted by a large number of specific treaties would lack substance— even if that norm were not formally abrogated. iii. The Dialectical Relationship between Unilateral Acts and General Rules The lack of any functional specialisation among unilateral acts leads therefore to a dialectical relationship between those acts and rules that aspire to be general. Unilateral acts can strengthen the existent rules, but they can also reduce their scope or even call their very existence into question. They can also lead to the formation of new general rules. This dialectic is permanent. It confirms the tenuousness, even the hypothetical nature, of the generalist aspirations of a number of rules, just as it substantiates the tension between application and modification of international law. The multiplication of dissenting unilateral acts is both an indication of a crisis in a rule, as well as the necessary prelude and accompaniment to the modification of that rule. Such acts are akin to symbolic crimes, which seek less to extract specific gains than to denounce the prevailing norms themselves. In this sense, the weapon that is the unilateral act is, in the hands of a subject of international law, an instrument of juridical terrorism. It expresses in one fell swoop the impossibility felt by subjects to conform to the prevailing rules, the incapacity of the legal system to punish a violation of those rules, and ultimately the final appropriation of the conflict by international law—to the point where it ultimately bursts. Another aspect of this dialectic lies in the reduction in the processes for modifying law, a confusion of categories and the evolution of legal rules.

B. Evolution This term has biological connotations. One should certainly not use metaphors abusively or seek to substitute their aesthetic seduction for sober analytical reasoning. Yet metaphors possess an evocative capacity that we should not reject out of principle, and they do rest on comparative reasoning. Let us therefore take the leap and follow the biological metaphor

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further. The evolution of norms is reflected in the growth of their legal authority and the broadening of their applicable scope. i. The Legal Authority of Norms Many norms are candidates for legal codification—for the consolidation of their authority. These norms are called into existence via diverse proceedings, frequently unilateral in nature. Resolutions of the UN General Assembly occupy a prime position in this process. A large number of tadpoles are released into the river, but not all of them will develop into frogs. A process of growth and metamorphosis leading to adulthood is essential. The same is true for norms, if adulthood is to be understood as acceptance as a conventional norm, as a customary norm or even—in its highest form— as a peremptory norm. For conventional norms, General Assembly resolutions can propose principles, determine procedures for elaboration or do both. For customary norms or jus cogens, such a resolution is presented in a declaratory fashion, solemnly proclaiming principles of high abstraction. The life of a norm thus bears comparison with the life of an animal. Both will develop and survive only if they are adapted to their environment and are capable of evolving with it. Their metamorphosis is the sign of success. The usefulness of our metaphor ends here, however. One must not overlook the importance of the conscious role played by subjects of international law towards the development of norms: the attitude of subjects to norms and their consent or lack of consent thereto is indeed critical. It is precisely this role that has led to the frequency of complications in the formative stages of obligatory rules. Such rules do not obtain this status at once but rather progress step by step. This is especially clear in the case of conventional norms, which must first pass through several stages before they reach the full intensity of their legal force. Treaties produce certain effects based on good faith immediately after their signing (the expression of the consent of states), indeed even before their entry into force. Parties must abstain from acts aiming to undermine the letter or the spirit of the treaty—even though the precise scope of this obligation is never clearly established through practice. The existence of relevant resolutions can add certain preliminary steps or lead to the provisional application of later stages. This process unfolds over both time and space, since the subjects eligible to participate in it do not express their consent simultaneously. The process accompanies a progressive growth of norms. But it can also lead to stumbling, which translates into failure. Treaties may not enter into force, or else they may do so only for a very limited group of subjects; states’ unilateral acts often remain contested; and resolutions repeat themselves unnecessarily, their effects restricted to the limited field of specific organisations. When this is the case, it is quite likely that contradictory norms will coexist—norms with differing legal intensity and tying together different

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subjects. Hence the saying that international law is its own adversary— though this very subversion can, from another perspective, represent the anticipation of its future development. Be that as it may, it is frequently the case that there is no simple substitution for norms but rather an accumulation and overlapping of them. A resolution, serving as preparatory act for a future treaty, can also contribute to the formation of a customary norm and abides in any event as an act of its issuing organisation bearing certain specific, stipulated consequences. This same observation holds for the second aspect of evolution, which concerns the relationship between norms of the same intensity—in essence, between treaties and customary norms. ii. The Scope of Norms Certain conventional norms aspire to become customary norms, just as the process of norm codification aims at transforming customary norms into an ensemble of treaties. We shall not dwell on these mechanisms, which have developed through case law and systematised by doctrine. They underline the overlapping and fluidity of categories. The same legal obligation can be both conventional and customary: the two norms are superimposed on one another. Custom thus becomes a technique for the generalisation of conventional norms, even if the conditions for this to occur are rigorous, and any eventual generalisation of custom will remain, as we have seen, hypothetical. This technique presents another interesting aspect, which in some respects establishes limitations and in others removes such limitations. The technique can establish limitations in that it allows for the isolation, from the ensemble of a treaty, of a specific provision—more precisely, a norm—that receives special treatment. It can also remove such limitation, insofar as this special treatment consists of the extension and generalisation of the norm in question—and not of the restriction, individualisation or virtual rewriting of the norm by a subject as a function of its own interests. A good example of this is the notion of Exclusive Economic Zones under maritime law. Certain principles relating to this notion in the Convention on the Law of the Sea are in some way detached from that convention and have undergone a process of customary generalisation independent of the future of the treaty itself. The treaty itself may thus come to resemble an imposing, copious and composite menu. But the net effect of reservations and customary generalisation turns that menu into a set of options from which subjects can select, restrict or extend norms. Such extension can bring benefit to subjects who, in a hypothetical scenario, may be unable to become parties to a treaty or who did not foresee their participation even under the form of accession.

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C. Provisory Conclusion Though the relativity and the mobility of norms is understood, it is clearly the diversity and even the dissolution of rules and legal situations that appear dominant. We have not found a synthesising or unifying principle in the international system that might on the domestic level compare with the principle of state sovereignty. And yet the international legal order does maintain, if not unity, a strong degree of homogeneity. This is precisely due to the decisive role played by interstate agreements or the engagement of states as poles of stability for the ensemble.

III. Homogeneity Let us return to the classic observation that international norms draw their foundations, their strength and their limits from the engagement of states. The international community allows for tremendous diversity and flexibility within international law and even holds the key to its enrichment and continued diversification: indeed ‘interstateness’ is the real meaning of internationalism. On the other hand, interstateness carries with it significant limitations that cannot be truly overcome.

A. The Engagement of the State The engagement of states is the source of all international norms, directly or indirectly. This is true for all norms, whatever their nature, whatever their intensity and whatever their scope. A state is bound only as a consequence of its own consent—including consent to customary norms and even including consent to norms of jus cogens. This consent can take various forms: it can be explicit, implicit, tacit or even assumed. One might speak of a sort of schizophrenia of consent, which can manifest itself through the habits of initiative, through contentment, through calculation, through acceptance, through indifference, through resignation and even, in some circumstances, through submission. These observations no longer raise objections of principle. Though we may toy with voluntarism and even on occasion seek to subvert it, it is rarely the target of frontal attack. The evolution of positive law sufficiently confirms this. It is rather the threat of a drift towards subjectivism that looms over it, which would seek to make of voluntarism (be it near-consensual, minoritarian or even isolated) the basis for a universal projection of norms not accepted by all. Any group or any agent that seeks to universalise its interests tends to adopt a tone of preaching and of legislating. But this predicative pretention must not be confused with positive law. One could certainly bring objections that go beyond legal technicality. One could note that voluntarism rests on the sovereign equality of states and

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that it is fundamentally fictitious. Voluntarism is a sort of anthropomorphism, an oversimplification that endows states with a quasi-psychological capacity to wish or to will. Can this be a serious conception, given the complexity and the internal contradictions of a state on the one hand and given the diversity and inequality of the multiple forces that are the true drivers of international society on the other hand? We must respond to both these objections. First, the term ‘voluntarism’ refers not to an oversimplified image of the world but rather to a fiction— a mask—and law is the science of masking. The task of jurists is not to look behind the masks, even if they can identify them as such. Rather, their task is to see what those masks represent and how they represent it. Second, these masks are not as far removed from the reality of power relations as one might think. The state is not only a legal fiction—an intellectual construction—but also an effective agent, at all times aware of power relations. Certainly, the concepts of sovereignty and equality are notions with strictly legal definitions from which we should not stray. But all their effectiveness is deployed in the production of legal norms. It is striking in this respect to note that the state is the pre-eminent subject of contemporary international society. Despite the deep changes it has undergone, the state remains the primary beneficiary of the evolution of international law. Decolonisation has led to a transformation in power relations: it has revolutionised the territorial foundations of a number of old states. But at the same time it has given new legitimacy to the very notion of the state and led to the generalisation of the state as fundamental unit. Decolonisation has led to neither an attempt nor even a desire to replace the state with a new form of political organisation. The state is thus a machine to harness economic, social and ideological movements and forces. It is the machine most suited to controlling, converting and using these forces for its own ends. Even its disputes turn to its profit, to the glorification of its strength. The state is always the mediator of ideology, whether that ideology takes the form Marxism, liberalism, human rights or development rights.

B. The Diversity and Flexibility of International Law The appearance and expansion of new categories of subjects of international law have not called into question that fundamental subject, the state. Interstate society can become international and get enriched through intergovernmental organisations, the recognition of human rights, the extension of international rights to individuals and even to nongovernmental organisations (NGOs) and multinational corporations. Nonetheless, all of these entities and subjects, real or potential, remain tightly linked to states. Their competencies derive from state initiative—at a minimum, from state recognition. Moreover, even once recognised and codified, these competencies

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remain under the control of states. Thus they are not only derived from states but indeed secondary to them. The case of ‘peoples’ is a good illustration. This concept, a principle of legal movement and even revolution, has never been fully individuated, formulated or enshrined. Today it tends to be absorbed by and confused with the notion of the state. A new state, once constituted, covers the concept of ‘peoples’ entirely, eliminates any autonomous legal existence it might have and reduces it to a transitory function. This is a result of a legal trick that seeks to challenge the state in the name of the peoples but finds itself faced with an even more solid and sovereign state as a result. Looking elsewhere, the vitality of NGOs—though their role generally remains unofficial—is remarkable. But to what degree are NGOs truly separate from states? How many function as proxies for states? One should not overestimate the diversification of international society. The game of masks is becoming more complicated, and accumulations and transfers of masks are possible; but ultimately interstateness remains the keystone of the system. Interstate society is thus not simply a present and transitive state of international society: rather it is the structure of that society and allows for the regeneration of that society. From this point of view, the colonial empires of yore were legally shaky, composite and monstrous. Decolonisation has imposed the logic of interstateness better than empires were able to. Thus notwithstanding the changes in vocabulary, the evolution of ideologies and the technological and cultural developments that have come to pass, international society has remained fundamentally the same. It transforms itself only in order to better preserve itself.

C. The Limitations of Interstateness One might think that some new form of super-state or trans-state society— based upon such notions as the international community, humanity as a whole, the peoples of the world, the common benefit of all mankind and the insistence upon universal imperative principles—could eventually puncture the interstate screen and reach the subjects of domestic law directly. This alternative framework sketches the outlines of a utopian international society. At first sight, one might think that these two frameworks are, if not in conflict with one another, at the very least in competition. But in reality, the two do not coexist on the same playing field; and they complement each other more than they oppose each other. The first framework, that of interstateness, governs positive law; the second derives from an essentially utopian discourse. This utopian framework consists primarily in a program for modifications to the first framework, but it has tended to lead the first to adapt itself rather than to destroy it. It also plays the role of a retrospective negation of a right

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to false neutrality, leading to true self-destruction. From this perspective, the comparison between two international conferences aiming at regulating the appropriation and exploitation of territorial space is striking: the UN conferences leading to the Convention on the Law of the Sea constituted an absolute antithesis to the nineteenth-century Congress of Berlin. On the level of participation as well as those of goals and general spirit, the UN conferences showed a reversal of the values of individualism (or of predatory statehood) and of naked competition among differing interests, striving instead towards the equality of rights and an equitable allocation of resources in the name of the collective interest of peoples. And yet this reversal (at present rather more theoretical than effective in practice) remains governed by the interstate framework. Furthermore, all states, including newer ones, continue to accommodate themselves to interstate society. While some may wish to adapt the mechanisms towards collectivist ends, they do not wish to destroy the foundations of that society. It is worthy of note that Third-World states have not attempted in their bilateral relations to go beyond classic interstateness. On the contrary, such states have sought to consolidate their classical authority by jealously guarding their sovereign rights.

IV. Conclusion We shall conclude with two propositions. The international legal system has not changed in nature. Notwithstanding certain apparent developments— which might give the impression that a shift from the private law of states to a public law of peoples has occurred or is underway—the international legal system has in fact continued to develop itself following the framework of interstateness. The multiplication of norms, the diversification of their scope, the various gradations of their intensity and the recognition of new subjects of international law have never escaped from the ultimate control that is the engagement of states—an engagement usually expressing itself in the form of interstate accords. This development has not set in motion a slippery slope towards other forms of organisation or regulative mechanisms. On the contrary, it has revealed the true nature of the system and proven its capacity to adapt itself to the needs of the interstate society. There remains, however, one question that eludes the jurist. Are the means available to this society capable of accurately translating the needs and desires of ‘humankind’? If not, there is the danger that a rupture might occur; and from the ensuing crisis—crisis in the sense of a sudden and dramatic overthrow of established conditions—new principles might emerge. But such a development is unthinkable given current trends. Remaining within the framework we are given, interstateness seems destined to be the unsurpassable horizon of international society.

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9 Acts, Norms and Law in 1500 Words or Less*

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O DEFINE LAW IN 1500 words or less takes a lot of arrogance, even brutality. It would involve no homage to the great forerunners of legal thought and little reference to contemporary disputes; it would be more confirmation than refutation or drawn-out reasoning. For an internationalist schooled in the unclear texts called treaties, the mysteries of custom and the discursive meanderings of the International Court of Justice, who needs to conduct parallel analyses on several levels, this is quite a sacrifice. But let us get on with it. Law is a system—an organised ensemble—of acts. Moreover, it is composed of only unilateral acts. As for norms, they are not legal elements themselves but elements of legal reasoning: the necessary intermediaries between two or more acts. The distinctive essence of a legal act is therefore not its normative content but its power, its ability to engender other acts. And law, in the disciplinary sense (constitutional, administrative, criminal, civil, etc) and without considering codification, is very much a doctrinal construction external to the system in force yet indispensable to its being understood and to its operation and evolution. Is it possible to fit this definition—or rather, these propositions—into the major doctrinal schools of thought? Let’s not try. Instead, I will paint a broad picture based on the Heraclitian—or Stendhalian—distinction between wet and dry. Normative approaches seek faithful reproduction, fair rules, social necessity and other alibis for the desire to be useful and powerful—all characteristics of wet doctrines—while my approach is clearly ‘dry thought’.

I. Acts I will ignore the issues of the origin and foundations of the system of law and begin with its existence. As an organised ensemble, it is self-referential only and rests on circular logic. The whole may be understood only as the sum of its parts, and each part refers to the whole. A legal act is the formalised * Previously published as ‘Actes, normes, droit: 10 000 signes’ (1990) 11 Droits 59–62.

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or qualified conduct of a legal person, a constituent element of an organised ensemble deriving a certain authority from it. By itself, an act has a totalising value. Like a monad to a certain extent, it contains and reflects the entire system, from which it cannot be dissociated. A municipal ordinance cannot be understood without reference to the Constitution, nor the Constitution without reference to the State’s international competencies. As summaries and indices of the system, all legal acts are therefore complex acts. Legal acts also contain the law in all its facets: its authors, procedures and forms, motives, purposes and power. The opposition between legal acts and facts is therefore artificial. A ‘legal fact’ is or becomes such, even retroactively, only when it is taken into account by a legal act (private, administrative or judicial), of which it is one of many possible contents. The true opposition is between fact and norm, which is the other possible content of an act and which exists legally only in this form. But what of custom, which takes effect without an act assuring it a right of entry into the system? In fact, it appears only when acts are produced, particularly in international law: unilateral acts, including judicial acts or even declaratory treaties. Like any norm, it is a legal argument, an intermediary between acts. Legal acts are always unilateral, because they must be reported to one and only one legal person, who is defined by an act—thus the circularity. What about acts under multiple authorities, such as a law for example? These may be imputed to a state only. And what of contracts or international treaties that require the consent of many? First, the anthropomorphic image of manifest consent is unnecessary. Second, they must be seen as juxtaposing unilateral acts and leading to the application of a legal regime predetermined by other acts. They arise only from the unilateral expression of consent and are implemented essentially by other unilateral acts, perhaps judicial ones in the event of dispute. Obligations remain individualised, proper to each party. The categories of contract and treaty are of course very useful, even if they do not correspond to single acts. In this regard, the myth of combined wills must be abandoned: these instruments represent ‘complex acts’ constituting a sort of constellation of unilateral acts, a subsystem in part with its own logic but related to the ensemble. It is indispensable to classify acts using different criteria. The most important criterion of both the classification and existence of legal acts relates to their relative power. Acts have differentiated, partially hierarchical power. They are also interdependent: the legal force of an act always stems from another act and resides in its ability to engender other acts. If all acts are unilateral, single legal acts are inconceivable. They can be realised only through the intervention of other acts, and the greater their power, the more later acts are needed to legally implement them. This legal power is the essential characteristic of law. It distinguishes law from other normative orders and logical arguments, which can be at least

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as morally or intellectually restrictive, if not more so. The ‘force of legal truth’ creates a mythical universe having something sacred about it and develops a sort of legal theology. Here at the heart of law lies its mystery, which by definition cannot be solved by law itself. This power is largely synonymous with that of the state (whose sovereignty is a cardinal notion on both the international and national planes), with the structuring of its constituent ensembles and sub-ensembles. This reflects given historical and political situations, even though the development of the state was and remains closely related to the concept of legal order. But we can and indeed are in some respects witnessing the crumbling, distribution and circulation of legal power in a federal logic that is fundamentally anti-state. This logic coincides with a certain secularisation of law, its decomposition into a beam of differentiated competencies instead of a concentration in a single point: a sort of legal pantheism tending to replace state monotheism. With this evolution, more attention is paid to norms than to acts: normative logic attaches to the legitimate content of law more than to its legitimate origins.

II. Norms For many, the normative dimension—a mix of finality, rationality and coercion—constitutes the essence of law. As we have seen, this is not true. Norms achieve legal existence only to the extent they are contained in acts. Moreover, this existence remains largely virtual since they do not serve as legal arguments that enable them to realise the passage from one act to another. Norms both support and result from legal reasoning, which has neither particular defining characteristics nor many common elements. It is indefinitely open and flexible, depending on situations and persons and blending with the many other ordinary reasoning methods. Codifying restrictive interpretation methods has always been useless. Logical constraint is itself very flexible. The principle of non-contradiction can therefore be ignored and precedent overturned or rendered inoperative by finding solutions that appear incompatible but that coexist in different fields of application. The only issues are the act’s power and the extent of its effects. Substituting such a perspective for the dominant normative one, which still bears a legal ideology dimension, leads to analysing differently the role of a body like the Conseil constitutionnel (Constitutional Council). It is not so much the constitutional norm that is superior to statute as it is the Conseil’s decision that must be respected by the parliamentary act and all public powers. The consequences for the balance of powers and the system’s dynamics and political philosophy are obviously important: the rule of law becomes nothing more than the rule of constitutional judges. Except

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for the prohibition on self-referral, the Conseil is master of the game, a true sovereign power subject only to self-limitation and vague threats of disavowal by referendum or constitutional revision.

III. Law If law is composed of an indefinite multitude of indefinitely renewable acts, constructing the intellectual discipline of ‘law’—as a whole or in its various compartments—is essentially doctrinal work. This work influences acts to the extent legal reasoning is common to authorised legal persons and authors. There is permanent synergy between doctrine and positive law. Very schematically, three types of doctrinal discourse may be distinguished. The first is technical: it considers jurisdiction and procedure first. The second is ideological: it is more interested in content, especially norms. The third is theoretical: it tries to explain and even develop legal reasoning and to highlight, if not elucidate, the mystery of the power of law. All three thus concentrate on specific aspects of legal acts, which comprise procedures, content and power. This functional tripartite division of centres of interest corresponds to a sort of division of labour among auxiliaries of justice and judges, politicians, professors and researchers. This is how law may be known and understood through official texts, the acts of private persons, case law reporters and the writings of the most serious authors.

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10 International Custom: Its Life, Its Craft*

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HATEVER ONE TAKES away from the juridical phenomenon, the originality of the techniques of international law cannot be denied. Domestic systems are essentially regulated by unilateral authoritarian acts, and despite the vitality of the contractual institution and the autonomy of the subjects of law, agreements play only a secondary role. Furthermore, domestic jurisdiction is framed and controlled by norms unilaterally decreed by state organs. In contrast, the international order is regulated by agreements; unilateral acts occupy only a secondary place and are frequently executed within the framework of interstate agreements. The logic of the two types of legal systems therefore seems inverse, with the state serving as the pole of this inversion. One should bear this general fact in mind as we move on to examine commonalities between these two different systems. To varying degrees, custom exists in all legal orders. At first glance, we readily accept that custom as a general matrix, a generator of norms that stem from practice and progressively affect the conscience of subjects, adapting and evolving spontaneously according to their needs. Customary law is immanent, a common good, and always in legal flux. Running in parallel to this is jus scriptum, or ‘written law’, which is voluntary and rational but also arbitrary, precarious and revocable. International custom is, however, no less original than the international legal system taken as a whole. On one hand, it stems from a milieu that is both heterogeneous and defined; on the other hand, it plays a principal though largely controversial role. The milieu in which international custom is constituted contrasts at every turn with the common conception of its corresponding domestic milieu. The domestic milieu, or series of milieu, is homogenous in the way that it translates conformity and expresses in a ductile and immediate way, even if by the process of repetition, the solidarity of the system. By contrast and beyond the identity of their legal status, however, members of the international society are very different from one another and often have contrasting objectives.

* Previously published as ‘La coutume internationale—Sa vie, son œuvre’ (1986) 3 Droits 111–24.

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The domestic milieu is, among other things, ill-defined and diffuse. The subjects and channels through which the customary process takes place are complex and difficult to define. The popular conception of actors following in each other’s steps expresses its open character well. While it is true that the formation of the path is discernable, it is also clear that we do not question ourselves about the type or the brand of footwear that we use when following the path placed before us by customary law. International custom is quite the opposite. Positive law is its defining characteristic, and it can only stem from the behaviour of a specific and limited set of subjects. Moreover, the subjects as legal entities are themselves legal constructions proceeding from political bodies, such that the primary, original and spontaneous character of custom is contestable, evading all rational and even predictable understanding. Nonetheless, from these opposing types of systems there does exist a technical means of translation. Differences between domestic orders, especially vis-à-vis customary practices, are numerous, but all maintain a close link between custom and jurisprudence. Certainly they should not be too closely assimilated, and the interpretation of statute law opens the door wide for court influence. Customary and statute law are different, but judicial decisions constitute concrete institutional support of custom, either with or without support of legislators. It can also be noted that there is a frequent correlation between the power of the judiciary and the authoritative place of custom in domestic settings. The linkage between custom and jurisprudence does to a degree exist in the international order as well. But it is present in a substantially different way. It can be found in the Statute of the International Court of Justice (ICJ), and this is even one of the principal arenas for the determination of custom itself. Article 38 enumerates the applicable law of the court, and the review of its rulings plays an important role in the development of international customary law. Still, this link is precarious, as the international order does not know any compulsory principle of jurisdiction, and subjects present themselves in front of a tribunal only by virtue of their own consent. Moreover, ICJ decisions have only the relative authority of the matter under consideration. As such, the Court’s jurisprudence is hardly in a position to register any sort of customary rule in the necessary repetitive and cumulative manner and thereby lend it permanent and widely accepted support. And yet, custom is a first-class means of creating international law, on par with treaties. Article 38 of the ICJ Statute cannot be considered a simple guide, limited solely to a technical role in the Court, but rather—despite of its imperfections—the enunciation of the modes of law formation. Still, it does not define any hierarchy between custom and convention, and practice confirms their equality in principle. Moreover, and despite efforts at codification, international law continues to develop without having relegated custom to a mere accessory role. There are many important rules in existence that have

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remained founded upon custom, at least upon first analysis (ie, those related to the status of the state, to territorial law, to international organisations, etc). Custom is always an essential driver of norms, and the limitation of this role in many domestic systems has happened only partially, if at all. Better still, it is at the analytical level that grand doctrinal conceptions have clashed over international custom. It has polarised debates, syntheses and hypotheses and thereby creates a sort of microcosm of the principal debates in the field of international law. Other than repeating these debates, even allowing for the integration of recent facts linked to the positions of new states, the activism of the international organisations and the attempts to codify the law, what else can be done? It is true that custom, like so many other institutions, is going through a crisis. But does such a crisis permit it to move beyond the classic debate between positivists (ie, volontarists) and objectivists? Are we therefore caught in a phase between the decline and renewal of custom? This remains unclear. No doubt that in the wake of so many attempts, it is unlikely that such a discussion will add the necessary clarity. Perhaps more simply then, this essay will attempt to distinguish and define the various elements of the debate. To start, the intellectual distinction between customary ‘process’ and ‘norms’ must be made. The term ‘custom’ in fact designates both: the process as the combination of the paths and means by which a rule is formulated; and the rule itself that is the resulting product. Let us apply this distinction to Article 38 of the ICJ Statute, which states: ‘The court . . . shall apply . . . international custom, as evidence of a general practice accepted as law.’ Is this statement about the process of the formation of the rule, or is it simply a methodical guide destined for judges, a sign of the existence of the rule allowing for its establishment? As the reference to ‘evidence’ indicates, Article 38 would not then concern the formation process but rather only the mode of externalisation of the rule. Still, the process itself remains a mystery. It should, however, immediately be added that such a distinction is still only relative, as intellectually necessary as it may be. An understanding of a customary norm can in fact hardly be grasped in the absence of the customary process. The norm does not exist outside of the process. It cannot, by definition, be identified in a legal instrument that would establish its externalisation, its distance, its production and its projection as a norm. In a certain way, custom is always constructed and always fielding the process of being constructed. At most, admitting the existence of the rule could lead to denying existence of the process. Inversely, and speaking hypothetically, to admit the continuity of the process leads to denial of the existence of the rule itself. In this game of hide and seek, custom risks being out of reach. Such an analysis should begin by researching and examining the breadth of custom (section I). Assuming that it is possible to define custom by following a legal method, it should be done by playing by the rules of the

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legal system itself, without superimposing any external, ideological, intellectual or pseudo-scientific preconceptions. Perhaps it is not such a bad idea to broach international law juridically, as law is the science of masks. Custom enters and functions within the system by masking itself, which is its passport to normativity. It is the will of those subject to the law, and perhaps the fiction of the enterprise, that trivialises and disenchants this mask, thereby bringing it back to the mode of existence of other norms, notably conventional norms. It lends rationale, whilst taking away from it the prestige of spontaneous productivity and normativity without rational support: this mask is called ‘will’ and will be examined in section II.

I. Custom in Bulk There are two ways, more complementary than contradictory, to dissimulate one’s presence: to be found either nowhere or everywhere. Custom uses these two processes alternatively—or simultaneously: customary rule may be nowhere, but customary process is functioning everywhere.

A. Invisible Custom (La coutume introuvable) The idea of invisible custom can be surprising. Certain practitioners rightly feel as though custom is out of date and does not affect them. But they are often international civil servants who are most familiar with institutional— and fundamentally written—law. In fact, the principle role assigned to custom by the ICJ Statute is poorly understood; the case law on which it relies is often forgotten; the manuals written by serious authors on which it was based is mostly ignored; and the activity of organisations like the International Law Commission is largely neglected, even though a major part of their work consists of establishing the existence and consistency of particular customs before proposing their transformation into conventional rules. Despite this large body of resources that at least indirectly point to the existence of customary rules, it is not unusual to question whether customary rule is, in fact, nothing more than a hypothesis. Those who do so believe customary rule to be, for example, only doctrinal assertion or an element of legal reasoning. But where is the legal authority of the motivation of a judgment beyond the specific case it settles? Let us observe first that we are made aware of custom due to its fundamental shortcomings or on the occasions that it falls short. If in fact the relations that it is supposed to manage develop without obstacles, without controversies and without conflict, its role remains invisible. Legal actors do not have any reason to question the statute of the practices they regularly follow and that meet their needs. It is only in cases of dispute that problems can arise, and witness the uncertainty that dwells on the existence or the content of particular rules. If, moreover, a disagreement is settled by direct

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negotiation between the interested parties, who can say that the recognition of a customary rule is the determining motive of the agreement? Is custom not masked by the agreement of the hour—which perhaps may never even be made public? Doctrinally, we can trace a general mode of conduct and give it customary law status but such an assertion will be devoid of authority vis-à-vis the subjects of law. The ICJ Statute recognises doctrine only as an ‘auxiliary mean for the determination of the rules of law’ (Article 38(1)). Jurisprudence is in the same position, according to the Statute. The link between custom and jurisprudence has already been highlighted. Judges objectively recognise—or are supposed to recognise—the rules that they apply to the disputes submitted to them. Their objectivity, or purely legal approach, is the safeguard of the autonomous existence of the rule— autonomous insofar as the immediate framework in which a rule is agreed is distinct from the way it may be diluted when states actually apply it. Without going as far as to say that it is judges who create custom and that appeal to outside law is only a jurisdictional alibi, the objective character of the recognition of customary rule by judges should be contested. It is in fact one or the other. When a judge applies a rule, the existence of which he establishes as a motivating factor for his decisions, this rule is an element of his reasoning, not its conclusion. As such, it is merely a step—a necessary part of the path from the problem posed to its inevitable solution. Such logical legal reasoning does not have the authority of a judgement. Alternatively, the judge arrives at a ruling that in fact formulates or reformulates a rule that was in and of itself at the heart of the initial problem. Even if it concerns a decision or a sentence and not an advisory opinion, the judge’s ruling is concerned only with the relative authority of the matter under judgement. The eventual objective character of the rule is therefore quite fragile and does not in any case have any general character, in spite of what may be an abstract or general appearance. The hypothetical dimension of the general legal authority of customary rule is therefore encountered again. Generality is, however, often associated with custom. Notwithstanding even regional or local customs, whose influence is largely dependent on the relative size of the region or area in which they play a role, it seems that this generality is still rather hypothetical in nature. There is no question that any state may reject, at least for itself, a custom that is in formation. Moreover, no court has universal jurisdiction that would permit it to confer such weight to a customary rule. Only the combined and consistent jurisprudence of various international legal bodies could eventually achieve this result, and it does not exist in practice. One could object to the notion of jus cogens and to the reference in Article 53 of the Vienna Convention on the Law of Treaties to ‘the international community of States as a whole’. This statement itself emanates from a treaty that, though in force, bonds only a relatively restricted number of states and harkens back to the aforementioned problem—the lack of a common jurisdiction for all states.

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All these difficulties arise from the fact that customary rule is not recorded in a written legal instrument. Let us then write custom down, and then we will know and understand it. Two methods can be used for this purpose. The first involves the explicit declaration of a customary practice, for example in a UN General Assembly resolution. Such a declaration offers a formulation that is abstract, formal, public and consensual, often after interstate debate that attempts to rise above any contentious, short-term polemics of the day. It offers the extra advantage of not undermining the customary rule it seeks to describe, since it remains a unilateral act attached to the custom without subtracting from its character, no more than giving it authority that it is otherwise denied. The process faces opposition on two fronts, however. On one hand, such a declaration is at best only a reflection of the rule, not the rule itself, and it thus maintains the hypothetical nature and opacity of the rule. On the other hand, the process risks bias and ultimately may transform the character of the rule. Still, this method aims as much at adapting the customary rule to current demands or to the wishes of a strong majority, as it does at documenting it in its supposed initial integrity. As such, at its best, the process of explicit declaration becomes an element of the customary process, supporting the rule itself. The second method for writing down customary law is codification. Codification benefits from the valuable assistance of the International Law Commission, a group of qualified experts, and from the intervention of states at various stages. The states answer questions regarding custom, adopt positions and eventually begin the process that results in codification. Is this not an unquestionable objective character of customary law? First of all, one could object that if custom becomes visible, it will disappear just as quickly, as the convention of codification is called upon to cover it up. It cannibalises itself, in much the same way that the ancient frescos depicted by Fellini in Roma were exposed to light only for a second before vanishing completely. This is not the only way in which the search for custom evokes archaeology. These objections to writing down customary rules are not, however, decisive. From one perspective, codification does not destroy custom but only superimposes itself onto it. A new custom can arise beyond the convention of codification: codification can serve to either crystallise or constitute the basis of new custom. Codification does not as much erase customary rule as it subscribes to the customary process that it serves to revive and enrich. At the very least, the two aspects seem inseparable: efforts to shed light upon, curb or bypass custom lead to its resurgence. Thus arises the complementary theme of the omnipresence of the customary process. Using an Anglo-Saxon image, if customary rule is cold, the customary process is hot.

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B. The Omnipresence of Custom At first glance, the idea of the omnipresence of the custom can also seem surprising. Nowadays there is a tendency to mistrust custom because of its imprecision and because of a preference for ‘written’ law, which appears to limit it. Is it not delimited by written law, with which it can interfere but not be confused? Does it not stem from a specific mode of reasoning? Is it not a permanent characteristic of international law to recognise not only one embryonic hierarchy of norms but also the egalitarian coexistence of two principal modes of norm creation (custom and treaty law) that are—at least in technical terms—profoundly different? Does not remarkable growth of treaties, the servant of international law, slowly lead custom down the path to comfortable retirement? It is, however, not at all certain that custom will be condemned to decline, nor even that the dynamism of the customary process leads it to being trapped in very limited categories. Rather, custom provides incentive to invest in it. Custom could even dominate the international legal system. Let us return for a moment to the issue of codification. It satisfies an ostensible objective: developing written—essentially conventional—law. An unintended consequence of such action is the expansion of the expansion and renewal of custom. Custom is far from being diluted and reduced by the proliferation of treaties, for which custom becomes a fortifying agent and an extension of the legal force of norms. It is not even necessary that a normative convention be enforced. No matter what the future of a specific convention in process, the core of negotiations undertaken can lead to new customs and even sap the force of the original convention itself. Exclusive Economic Zones (EEZ), which were formulated within the framework of the Third Conference of the United Nations on the Law of the Seas, is a well-known example. More generally, the customary process penetrates to the core of questions about written law and its integrity. Even if the Vienna Convention on the Law of Treaties does not specify that state practice exterior to the treaty at hand can implicitly lead to its modification, this possibility is generally recognised and supported by practice. In the opinion of the ICJ, for instance, Security Council voting procedures have been modified by state practice, and the Charter has thus been amended due to customary practice. Finally, this process also involves the instruments adopted by international organisations, even if in theory both are regulated by ‘written’ law. Controversies concerning such matters are far from being resolved, but on the basis of more or less rigorous conditions, each admits that in principle custom can be formed through the actions of organisations. As was previously illustrated, such controversies, independent of their own value, can in fact be not only a sign of custom but also a vehicle or element of its

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formation. This capacity sets out in two directions: one such avenue is the common practice within organisations modifying their charters; the other is found in declaratory resolutions that, beyond the invitations addressed to members, aim at obtaining consent via the invocation of principles governing interstate relations. Several lessons can be drawn from these various examples. The first is the opportunism found within the customary process. It is extremely malleable and cannot be enclosed in compulsory or restrictive channels. Distinctions have been drawn between ‘wise’ and ‘savage’ custom, ie, between older and newer custom, or between ‘civilised’ and ‘uncivilised’ custom. However, in contrast to a treaty, which is civilised by a process that makes it a supple, well reasoned and meditated act, custom is nonetheless always savage: it always spills over from procedures, and its opportunistic character makes custom always unforeseeable. The only organising principle found in custom is perhaps that of the economy of means, the search for the path of least resistance between the consenting parties. Then there is custom’s parasitic character. The customary process does not have autonomous or specific traits in which it can ground itself. It always appears via superimposition or as an element appearing only between the lines, in the conduct, behaviour or actions of the subjects of law. Take, for instance, a unilateral act: in addition to its own authority, it carries the pretensions of custom; the same could be said for a treaty, even actions taken, without defined legal status. Custom is nothing without such actions; it exists through them but cannot be mistaken for them. It seizes upon them, uses them and changes their direction, sometimes immediately, sometimes after their conclusion, by superposing itself upon them and directing their legal conducts from above. The final lesson from the examples discussed above involves the reversibility of relations between ‘written’ law—essentially conventional—and customary law. Written law and customary law function like a game of mirrors: they are theoretically equal but tend to mutually govern one another. Article 38 of the ICJ Statute is ‘written’, or conventional. It forms the basis of the Court’s jurisprudence. But Article 38 is only the codification of a customary rule pertaining to the formation of law. The treaty itself is the product of custom, for which it is only one step. Behind this tangle of relays and exchanges, the nature of custom emerges. Some perceive it as being radically different from ‘written’ law. On the contrary, however, as legal entities, written law and custom are of the same nature. They both wear masks—namely the will of the subjects of law.

II. A Mask Called Will Even if the choice of one theory or other has little effect on the concrete analysis of the customary phenomenon, doctrinal contestations remain

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alive. Even beyond the origin and nature of customary rules, debates range over the conception of international law as a whole. Voluntarists believe that custom derives from the consent of states, whilst non-voluntarist theories dictate that the essence of custom is both distinct from and transcendental to states—states must submit to a necessity that is directly restrictive, without the procedural mediation of ‘written’ law. The controversy over these positions will not be resolved here, but it seems necessary to distinguish between the question of the foundation of law, which is a false problem, and the issue of the origin of custom, which calls for a clear answer. Fundamentally, custom presupposes unity rather than duality as the basis of the customary process. Furthermore, customary process does not limit custom in an undefined past within sedimentary practice. Custom’s relationship to time is much more complex, existing as it does between a priori and a posteriori.

A. A False Problem, a Real Solution The controversies surrounding the origin of the obligatory force of custom are somewhat obscure as they haphazardly confuse two very distinct questions: the foundations of law as a whole and the specific origins of custom. This is understandable. Historically, international law largely stems from custom. Moreover, custom seems to be its very core, raising all problems central to international law. Distinguishing between these two issues is, however, crucial. The fundamentals of international law are a problem of the metaphysical order that leads logically to impasses, as was illustrated by the Kelsenian questions related to the very bases of the hierarchy of norms. The positive law system identifies its subjects, distributes their competencies and defines the manner in which its norms are formed and the conditions of their validity, as well as the ways in which the norms can be opposed. Positive law is completely self-reliant, deriving validity from no other source and defining its own law—and its subjects recognise it as such. Evidently, this presents a vicious circle, since the subjects are themselves defined by the law, and thus we encounter the old riddle of the chicken and the egg. But this is generally the case when faced with the mystery of origins or beginnings. One must admit such a reciprocal identification—ie, the mutual recognition of subjects as they present themselves—is a foundational event, even if a fictitious one. Acting in this manner, they mask themselves. The order of relations that they develop on this basis is pure convention. As such, if we admit that the primary mode of identification is customary, we can say that custom is at the base of the system—becoming the mask of masks, so to speak. However, on another level, custom is in the international legal system, controlled by it as much as it controls the system itself. In the framework of the international positive law system, the consensual origin of custom is hardly questionable. Custom’s mask is therefore the will of the subjects of

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the law, and the famous Lotus Case of 1927 remains unsurpassed in demonstrating this. Cannot custom be unmasked to reveal in its stead a law that is objective or spontaneous, a direct and necessary product of social interactions? Such an action would without doubt dissolve the legal object rather than reveal its profound nature. Moreover, does ‘objective’ or ‘spontaneous’ law escape will—or even manipulation? Custom does not express itself directly but rather through intermediaries that will in fact reveal its substance. Who are these interpreters, in whom we will recognise the right to dictate that which is the law and then to impose it upon various subjects? Are they judges? Legislators, even if acting only by a sort of dédoublement fonctionnel? Spontaneous or unsolicited law can then evoke the infamous ‘spontaneous confessions’ that occur in central police stations. As for objective law, if it is able to unmask, it risks substituting illusions for masks, which is not necessarily progress, especially not rational progress. The real choice then is not between voluntarism and objectivism but rather between voluntarism and subjectivism, even imperialism. It is not surprising to note that the hostile trends of voluntarism correspond historically to those in positions of dominance in the production of international norms, which tend to identify their situation of momentary strength with an aptitude to express the aspirations and needs of international society as a whole. Hence the reversals, even contradictions in analysis—the keys to which are evidently not the only intellectual order.

B. Two Elements, a Single Process Classical analysis of the customary process identifies two components: a material one (general practice) and a psychological one (opinio juris sive necessitates, acceptance of the practice as law). Does this dichotomy correspond to the real process of formation, or does it simply indicate more signs of custom? If one is a consequential voluntarist, one must admit that only acceptance or consent is at the juridical origin of the rule. Practice is only the instrument, the witness of its emergence. Its role is justified by the necessary parasitism, the economy of means of the customary process. It is necessary for the practice to be relevant. In this regard, the assimilation between practice and ‘fact’ is quite simple. Practice is not an inert mass to which the opinio juris would impart juridical sense. It already is a juridical practice, since it consists of juridical behaviours—unilateral acts that are unilateral, governmental, legislative, jurisdictional, administrative, institutional, conventional or other legally-characteristic conducts—and it should be attributable to legal subjects likely to be linked by the rule of law. Therefore it has by its nature a normative dimension, implying that it is impossible to disassociate it from the opinio juris. As such, except for when a rule imposes an abstention, meaning a negative practice, opinio juris is hardly apparent, only showing through in juridical practice, behaviours or declarations.

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The distinction of the two elements is hence intellectual or methodical but does not affect the unity of the process. Two consequences can be drawn. On one hand, the classic question of the temporal priority of one of the elements hardly makes sense, as they cannot be dissociated. Let us take as an example UN General Assembly resolutions, which can sometimes be said to contain an opinio juris that precedes practice, the latter having then to confirm and reinforce the rule. In reality, the role of the eventual practice is not to add an indispensable supplementary element but to prove in a retroactive way that the invoked opinio juris did exist in the act in question. An opposing practice (ie, a non-conforming practice) would only restore the act to its inciting nature, demonstrating the non-existence of the opinio juris at its core. Otherwise the process is indefinitely open, and custom can be formed by any means proper to establishing consent between subjects: a dialectic amongst unilateral acts that carry sweeping juridical pretensions, even gentlemen’s agreements, general conventions, etc. The consent of subjects, however, presents with its own specific characteristics. As is logical, it possesses not only less formalisation than treaty consent but also less protection. In particular, consent is less formalised with regard to domestic law, which in principle does not define the conditions under which the state is bound by international custom. As for the protection of state consent, the notion of validity within consent theory, which is applicable to treaties, does not for the moment seem transposable to customary law—but nothing prevents it from being so in the future. Besides, state consent to general custom is presumed, such that states are considered to be bound by such custom. Let us add that the conditions under which a state is no longer bound by an accepted custom remain unclear in positive law, beyond mere reference to de lege ferenda. Again, here is a difference with conventional law, which in certain cases admits the possibility of unilateral withdrawal from a treaty concluded for an undetermined duration. Do these characteristics of the consent of subjects undercut the voluntary origin of states’ adherence to custom? Not at all, since the principal fact remains that states can, by objecting at the stage of the formation of the rule, render such a rule non-invocable when facing it, as is the case with new states at the time of their emergence. The difficulty of withdrawing from a previously accepted rule, even tacitly, certainly underscores an absence of or deficiency in the regular processes available to change the law. The result is a succession of crises that, depending on the cases, allow either the overloading of the rules in question or, on the contrary, their reinforcement. The deliberate and unintentional violation of a rule can lead to acceptance or imitation, albeit sometimes after a transitory period of doubt. The evolution of the law of the seas clearly illustrates this. Or quite the reverse, it can arouse reactions and protests that confirm the law’s total authority, as is the case in the law of diplomatic relations. In other words, custom, being a continuous process, is in some ways a process of permanent negotiation.

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Such negotiation is informal, divided and diffuse, but it can also be collective, institutional and punctual. The process can interfere and become parasitic; this is the case within international organisations and codification conferences. Furthermore, whatever the duration, the occasion or the circumstances, the varying degrees of power of each state play a role in any negotiation process. Consent itself is admittedly equal, as are the states themselves, in the sense that each state is the sole competent force able to grant consent, and the state’s sovereign power allows it to do so. But there are multiple means of applying pressure, retaliation, making concessions, reciprocation and compromise that can be brought into the matter. Much like legal systems in general, custom channels power politics to a certain degree, undoubtedly more so than it channels social necessity. In other words, it in no way escapes manipulation by the subjects of law, and behind its apparent objectivity, we find the usual confrontations and compromises between states’ varied interests. Is not custom tributary to a normative empiricism? Do not past practice and its inertia limit such manipulations? Are grand organising schemas reserved for ‘written law’, as the unique force able to project itself into the future? Notably, the relationship between custom and time rears its head again, which leads us to observe that custom is more malleable and more opportunistic than we may think at first.

C. Between A Priori and A Posteriori Even if we limit the role of practice to manifesting rules rather than constituting them—if we assume that duration is no more relevant to the existence of a custom than repetition—it remains obvious that a sensible period should elapse during which the different consents are gathered and in certain ways meshed. Admittedly, this period can be as brief as it takes to generate a collective expression of consent, either through multilateral negotiation or through the intervention of a treaty. Instantaneous custom remains exceptional, even though it can be formed faster than treaties, which are subjected to diverse and divided procedural stages. It then risks being restricted to merely a notary-like function, registering an agreement the conditions of which are most likely incapable of adapting to the new wills and needs expressed in the juridical system. Fast—even immediate— custom cannot be futuristic. In reality, we do not see which technical handicap prevents custom from projecting into the future, laying principles that imply posterior evolution, leading to a phased rupture with the former state of law. For example, the widening of the territorial sea, sovereign state jurisdiction over continental shelves and the existence of exclusive economic zones have been customarily recognised, despite the fact that the concerned—and ultimately, consenting—states have not yet taken the unilateral measures that would enable

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them to make the corresponding rights concrete. There is therefore a dynamic and not only static element to custom. States should use it prudently, because decisions taken in the moment could depend on the success or the failure of their pretensions—the contestation or the recognition of such being founded on a simultaneously applied and dedicated new rule. Timely management of the customary timeframe is therefore necessary. Several recent diverse notions with partially defined content and legal status—including permanent sovereignty over natural resources, or common human heritage—also illustrate this aptitude for projection, of step-by-step transformation. Hence the progressive development of international law, a task most often assigned to treaties, does not escape custom. We can, however, question the capacity of custom to depart from the macro-juridical domain of principles and rules, to move toward controlling the processes and technical details, to give precise and definite contours to norms. It would thereby call upon the necessary and posterior finalisation of ‘written’ law. Or on the contrary, it would take on such a role only in an a posteriori sense, thereby systemising and generalising implicit rules. Here again, however, nothing prevents techniques associated with custom to adapt to or, for example, to sanction a procedural practice developed within an organisation or international conference. Custom is limited only by the possibilities of its mode of expression, and that is practice. It can thus legally sanction all that practice can contain. Eventually, we can come back to the distinction between process and norm. The customary process occupies an indefinite present, since it is constantly at work. As a norm, it reveals itself only during punctual manifestations, since it has only a hypothetical existence outside of its concrete applications and is more presumed than established. It therefore simultaneously occupies all instances of the juridical timeframe. It records the past, justifies the present and aims to manage the future. In a state of permanent tension with ‘written’ law, custom interprets the international juridical phenomenon as a whole, expressing all its complexity and helping to realise most of its potential.

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11 Interpretation in Public International Law*

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NTERPRETATION HAS DISTINCTIVE characteristics in public international law and contributes significantly to its unique character. In fact, the role of interpretation in this body of law even leads some to doubt the legal nature of what could be viewed as so-called law—merely artificial, superficial rhetoric. If anyone and everyone can take shelter in the subjective interpretation of indefinitely malleable rules in order to promote their own positions and interests, with no specific forum or organised procedure to work towards a common, objective interpretation, how can the positivity of a law that is so disjointed—condemned to be everlastingly contradictory—be admitted? At least, how could the law be considered to form a system, in the sense of being an organised whole? Hence, even more so than the spectacular limitations or shortcomings of international law with regard to implementation, the role of interpretation casts doubts on the very existence of international law itself. If it does not help establish the law’s unity, coherence and—in the final analysis—its meaning, then where can these be found? If they cannot be determined uniformly for all subjects, how can such law be enforced? However, beyond the theoretical issue itself, the practical problems stemming from this aporia need to be considerably played down. They do exist but are less substantial than they may seem at first glance. A silent harmonisation between subjects and by subjects—essentially states—takes place every day through political and bureaucratic procedures. After all, the rules in question have been accepted by the states themselves and coincide with their interests, so they do not a priori have any reason to shirk or diverge from them. The only point is that their interpretation assumes the agreement of the states concerned, in the interest of their joint future. Their interpretation would therefore include their concert, or at least acquiescence, which could take place through different channels. Hence, at this stage too—as at the stage of the drafting of rules and their application—we once again see public international law’s negotiated and * Previously published as ‘L’interprétation en droit international public’ in P Amselek et al (eds), Interprétation et Droit (Brussels, Bruylant, 1995) 155–63.

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concerted nature. But it is more a characteristic of the law rather than a shortcoming that should distance it from any rapprochement with domestic legal systems. The latter have not necessarily been taken as models, although comparison with them may be useful to highlight the originality of international law as compared to domestic legal systems. The same observation holds true for community law, which may certainly be a branch of international law—an outlying branch that boasts of a centralised mechanism for interpretation, which is exactly what is missing in international law. So rather than looking for analogies or substitutes, which tend to conceal the radically distinctive identity of international law or to moderate its consequences, we shall emphasise the positive aspects that predominate in the interpretation process as a whole. On the one hand, there are competing interpretations and modes of interpretation, which lead to legal anarchy (section I); and on the other hand, this has led to constant and visible reevaluation of the act of interpretation itself, its role, its place and its very notion within the international order—not just theoretically, but in direct relation to the system’s positive characteristics (section II).

I. Competing Modes of Interpretation The term ‘interpretation’ itself has at least two different meanings. As is often the case in French—a language that claims precision and clarity as attributes—the expression indicates both a process and its result, an activity and its product. Hence, interpretation is on the one hand a movement of interrogation or a search for the meaning of a rule or legal situation and, on the other hand, the answer or result obtained. According to the former meaning, which is dynamic, the capacity of the subjects must first be defined. Who is competent to interpret the rules? Observation shows that different subjects have inherent, implicit or indirect capacity in this regard, whether they are states or international organisations. On the other hand, theoretically no subject acting unilaterally may impose its interpretation on others, with the result that the parity of interpretations envisaged by the latter meaning described above, which is static, can lead to obdurate incoherence, as a result of the very equality of interpretations. In such conditions, only concerted interpretation between the subjects concerned can reduce this virtual incoherence and do justice by all. This cannot be seen as an exception to the principle of the equality of interpretations but on the contrary as one of its consequences—both logical and practical.

A. States Firstly, with regard to the state, both as a theoretical model and a unique subject of international law, sovereignty implies the freedom to interpret its own commitments, to assert the meaning it gives them and—as is most

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often the case in practice—the limits it places on them, as well as the meaning it gives to the corresponding obligations of other subjects as a counterpart. The state retains this capacity despite any formal restrictions included in conventional legal instruments. Thus, the fact that a treaty prohibits reservations with regard to all or part of its provisions does not hinder a state from exerting its right to independent interpretation, as it is not the same in nature. In fact, as in the case with reservations, it consists not of changing the substance of a commitment but simply of clarifying it and giving it its initial and complete meaning—even if such a differentiation in interpretation may be artificial in practice. Furthermore, the ways in which this particular capacity of the state is brought into play are very varied and undefined. They may take the form of declarations and thus formalised, contemporary stands with regard to the concerned commitment, but they may also subsequently take the form of legal practices, conduct or behaviour from which recourse to a rule’s given meaning can be deduced, attesting to its usage. The indications given in this matter by the relevant provisions of the 23 May 1969 Vienna Convention on the Law of Treaties (Articles 31, 32 and 33 on interpretation) testify to this diversity. Furthermore, they are not exhaustive. Moreover, the conditions in which a state is bound by its own interpretations—and in a way, exhausts its capacity due to the determined use of the said interpretations—are not clearly established. To take just one example, the United States, after having supported a so-called narrow interpretation of the 1972 Anti-Ballistic Missile (ABM) Treaty, which was concluded with the Soviet Union, examined the arguments that would enable it to justify a broader interpretation and, without applying it, to immediately affirm its capacity to retain the right to it later, if the need arose. Such a situation evokes a system of unilateral action. But it is true that a state may find itself obliged to respect the commitments that it itself undertook, by using estoppel. But the modalities for the application of the principle of non-contradiction, which prohibits a state from going back on commitments that others could consider as having been established, are far from clear. Hence, the consequence of a state’s sovereign capacity is that under common law, the state judges its own case. It is free—if not to rewrite, at least to give a specific meaning to its own obligations. And this capacity is all the more important since such obligations are rarely specific—at least, not in all aspects. International law is largely composed of customs or normative treaties that are not accompanied by concerted acts of execution (as is the case in domestic law) undertaken at different stages, making its meaning both operational and univocal, enclosing it within a growing web of clarifications. Hence, an instrument common to different states, such as a treaty, is subject to diversification—the individualisation of its application modalities. As a result, events proceed as if a treaty were in reality no more than

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a collection of unilateral actions freely implemented by each of the parties on its own behalf.

B. International Organisations With regard to international organisations, which may be considered the institutional face of international society, at first sight the collective nature of their legal instruments seems to provide a solution to such competition. Admittedly, these instruments are formally unilateral and legally attributable to specific organisations. However, behind these appearances, the intergovernmental reality of the way they are formulated and adopted could turn them into tools for overriding unilateral interpretations—a specific and preferred method of concerted interpretation. That international organisations have the necessary competence to interpret laws is not in doubt. But this is admittedly dependent upon their constituent charters and can be organised based on differing modalities, since it is a well-known fact that there are barely any laws that are common to all the various organisations, in which the principle of specificity continues to predominate, enhanced by the specialisation of their domains of competence, which in turn are merely derived competences. That is why the two poles or theoretical organisational models offer opposing solutions. For the United Nations, the Charter is silent on this point, but a ‘Report on Interpretation’, drafted during the preparatory phase acknowledges the inherent capacity of the various bodies in this regard. For the European Communities, the attribution to the Court of Justice of the European Communities (CJEC) of an obligatory competence in matters of interpretation was laid down in the Treaty of Rome itself (Article 177). However, for the UN, its various bodies’ competence in the matter—and thereby that of the organisation itself—is not final or obligatory. Whereas the competence of the CJEC enabled it to impose a centralised and authoritarian interpretation of Community law on its Member States and their jurisdictions, thereby establishing its unity and primacy, the interpretation capacity of the various UN bodies competes with that of its Member States. As a result, in the name of a different interpretation of the Charter, a Member State may well maintain that a given resolution exceeds the competence of the body having adopted it, declare it null and void and refuse to take it into consideration. One such example was the attitude and of the USSR and other socialist countries with regard to a General Assembly resolution (A/37/98 D of 13 December 1982) entrusting the SecretaryGeneral with inquiry powers. Admittedly, it may be said that this is not the case when the Security Council acts on the basis of Chapter VII, with the result that a core of interpretation-related competence emerges in the field of peacekeeping and international security. The consideration that the Council had requested and obtained Iraq’s consent to Resolution 687

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(3 April 1991), through which the former imposed heavy obligations on the latter with particular regard to disarmament, nonetheless raises some questions. The above concerns the interpretation of charters or constituent treaties themselves. But what about external international law—rules that are not directly aimed at specific organisations, although they could in fact be binding on Member States? For the United Nations, which frequently faces this problem, the Charter itself provides extensive resources. Beyond its institutional nature, the establishment of its bodies and the regulation of their competences, it has a normative character, in that it codifies or develops a number of rules for general international law, notably with Articles 2 and 55. At the same time, it opens up the interpretation capacity of UN bodies in their respect. Practice shows that this faculty is exerted in the case of rules that remain external—customs or treaties. It takes the form of resolutions, thereby implying action on the part of political bodies that are intergovernmental but also those of integrated administrative bodies. The secretariat’s legal opinions therefore have to take into consideration the whole of international law that constitutes the organisation’s ordinary operational context. In any event and apart from the specific case of the European Union, the intervention of interstate or more specifically intergovernmental organisations only adds to the competition between different modes of interpretation. It adds to state interpretations rather than replacing them. And this holds true except when—possibly but not necessarily—such an institutional interpretation is actually the instrument, vehicle or medium for a concerted interstate interpretation, which expresses the collective or joint commitment of the concerned organisation’s Member States through the organisation’s legal instruments.

C. Concerted Interpretation Concerted interpretation between subjects bound by rules is the only authoritative method under common law—authoritative in conformity with the classical dictum of Roman law: ejus est interpretari cujus est condere. To the extent that it stems from the authors of the rule itself, it is referred to as an authentic interpretation if it is formally expressed and as a semiauthentic interpretation if it is deduced implicitly from common practice. It therefore appears to be a technique for harmonising competing capacities, but it is the fruit of these capacities rather than their negation, as it results from the free exercise of such competition. In fact, concerted interpretation is deployed with the greatest possible freedom. It is not circumscribed by any procedural conditions: it can intervene in a consensual framework through the convergent application of the same provisions or in a confrontational framework through the negotiated settlement of a problem or disagreement. Nor is it circumscribed by any

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deadline or date: it may stem from compliant unilateral legal instruments or from joint declarations, from state or institutional laws, but also from convergent or common practices, or even combine formalised laws and tacit acquiescence, which implies a certain spreading over time. It is also not circumscribed by any method: it is not subject to any possible methodological constraints for framing the process, since it is on the contrary a component of the method itself (infra). Moreover, it is not circumscribed by any content that might stem from concrete or abstract requirements. And finally, to a certain extent it may not be circumscribed by any result either, in the sense that the distinction made between an authentic interpretation and a modification is rather tenuous. Hence, the Security Council’s voting procedure could be interpreted as not requiring a positive vote from its permanent members and as being able to proceed even if they abstained, contrary to the text of the Charter itself. The notion of subsequent practice serves both to interpret and modify a rule, the only theoretical difference being that the former is considered retroactive whereas the latter only takes effect once it is consolidated.

D. Jurisdictional Interpretation Jurisdictional interpretation is a specific kind of interpretation by an international organisation. In fact, it emanates from either an organisational body or an independent jurisdiction that is an organisation by itself. If we look at the specific case of the CJEC mentioned above, it is in a somewhat intermediary position between unilateral and concerted interpretation. It is concerted because it is based on the prior consent of the states concerned; but it remains unilateral because it is attributable to a specific body. In this respect, the authority of the CJEC is fundamentally limited. Although in principle it is tempting to see this as a solution that would promote the regular and lawful application of international law, in practice it provides only a partial remedy. This holds true for the advisory opinions of the International Court of Justice (ICJ): although the bodies requesting these opinions generally consider them mandatory, they cannot be imposed directly on UN Member States. It is also true for rulings and judgments rendered by arbitral tribunals. In fact, these decisions are relatively authoritative only with regard to the issues being judged, insofar as the interpretations they adopt cannot a priori be extended to matters beyond the dispute being settled and the parties to the specific legal proceedings. Moreover, a distinction needs to be made between the motivation and the dispositive, in the case of each decision. Only the latter is mandatory, yet most often the elements that are directly relevant for interpretation—such as legal argument and analysis of relevant standards and practices—are all part of the motivation. Admittedly, the way in which jurisdictional rulings are received and the subsequent acquiescence of states to legal precedents, as indicated by their diplomatic practices and

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by the practices of organisational political bodies, can help extend such authority and ultimately even make it widely prevalent. Thus, though indirectly, jurisdictional interpretation can turn into an instrument or a modality of concerted interpretation, but only insofar as it channels the subsequent behaviour of states—and that in fact actually forms its basis.

II. Extension of Interpretation The extension of interpretation in international law can be measured in relation to domestic legal systems. Interpretation—interpretative action positively defined as such—is limited therein, implicitly contained in and thereby covered by different legal work sequences: taking measures for executing the highest norms, jurisdictional rulings, etc. Interpretation rarely emerges autonomously in the ostensible functioning of the positive system, or else it does so only through the marginal angle of preliminary or prejudicial issues, for instance. It is true that discerning interpretation at work behind other procedures is always possible ideologically and is certainly justified. Furthermore, the issue of the meaning of the norms in force is no less important. It is equally true, at both the domestic as well as international level, that whosoever controls the interpretation of law controls its meaning, and the battle for control over interpretation is a decisive component in the struggle for law. However, as we have seen earlier, the international order’s structural characteristics give it both greater visibility and a wider role in interpretation. It determines both the positivity of law and its rationalisation.

A. Visibility In international law, more so than elsewhere, a significant part of legal work—diplomatic, but also judicial and perhaps even doctrinal—is aimed at determining the meaning of the rules in force, specifying their scope and defining their mutual linkages. Thus, far from being the implicit content of an act endowed with its own legal system—eg, a regulation in relation to a law—interpretation intervenes directly to determine the conditions for the application of given rules—eg, a treaty. In fact, it is not merely a function but in practice also a dysfunction, because the contradictions it brings to light can hinder the ordinary application of the law vis-à-vis its subjects, far more than facilitating it. Such a situation is the outcome of several factors: the competition between different modes of interpretation (see above); the inadequate development of several legal systems, which calls for supplements adapted to different special cases and therefore interpretative construction—intermediary or liaison-based legal reasoning (see below); and finally, the very flexibility of general norms, which are often auxiliary or optative in that they

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can be set aside by manifesting a plea to the contrary. But all this is not necessarily explicit and must therefore be discovered or re-constituted through interpretation. While referring to this flexibility, an International Law Commission (ILC) Special Rapporteur on Treaty Law observed that in a future convention, several provisions would have ‘interpretative nuances’. A case in point is the principle of the non-retroactive nature of treaties; more generally, it holds true for different problems pertaining to the application of law over time, or inter-temporal law.

B. Generality For many authors, interpretation work should be limited to treaties, or at the very least, to written law—ie, merely by extension, interpretation would incorporate the extremely broad and heterogeneous category of unilateral laws. This limitation can rely on positive references. Article 36 paragraph 2a of the ICJ Statute attributes the competence of ‘interpretation of a treaty’ to the Court; and the Vienna Convention on Treaty Law (23 May 1969) devotes one section to interpretation. Moreover, according to this restrictive approach, interpretation may intervene only insofar as the norm in question does not provide a ‘clear meaning’ by itself. There is accordingly no need to interpret something that does not require interpretation, as if the task of interpretation itself causes problems and at the very least testifies to the inadequacy of the rule. This dual limitation can easily be rejected. First, no matter how ‘clear’ a given formulation may appear, it always has several possible meanings. In fact, believing that a meaning can be unequivocal is futile, even supposing that its abstract meaning is not debatable. Furthermore, the diversity of its nuances when it is related to the specific situations it governs generally leads to ambiguities, or at the very least to concrete options. Indeed, a ‘clear meaning’ is not an intrinsic fact or a substantive quality of a given text but already the outcome of interpretation. Thus, consensual interpretation is simply set off against conflicting interpretation, with the former appearing to be immediately included in the rule and the latter presupposing subsequent argumentation that is then applied to it. In the former case, one proceeds by affirmation and in the latter, by justification. Thenceforth, interpretative activity is in practice omnipresent in written law. Second, interpretation applies also to non-written law, especially international custom. The interpretation process is constant here. In fact, it is rooted in a written text: Article 38 paragraph 1b of the ICJ Statute defines custom as ‘evidence of a general practice accepted as law’. Over and above this purely formal link with written law, bringing out the existence of a customary rule consists of assessing and interpreting signs, as well as comparing legal practices with the concerned custom’s externalisation criteria. Once it has been established, it must be formulated and attributed with a

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specific written meaning. The formulation itself is a specific interpretation of a substantially non-written law that is held to be assumed rather than established, whose full meaning would in no way be exhausted, no more than its multiple potentialities.

C. Interpretation and the Positivity of Law Two opposing aspects of interpretation and the positivity of law can be analysed. The first aspect limits the extension of interpretation, but the second, which is more important, buttresses the role of interpretatioin. It limits extension insofar as by its very nature, the action of interpretation applies only to the rules in force and cannot play a creative role. It cannot conjure up new rules and must be content with expressing the virtual contents of existing norms—at least in theory. Even if it is just a matter of appearances or an artificial link, it must be defined in relation to the rules in force and be based on claims of pre-existing positivity. However, it is interpretation that confers legal effectiveness to these rules, and their positivity is evaluated accordingly; this function therefore encourages the extension of interpretation. Positivity itself remains purely virtual, insofar as the rule is simply laid down in a law, contained in an instrument or even simply assumed by a reconstructing legal argument, as in the case of custom. The power of custom as rule—its ability to govern behaviour or engender other subsequent legal proceedings—then remains theoretical. Interpretation is therefore an element in the passage to action or behaviour. It allows situations to be assessed. At the same time, in a recurring movement, through comparison with distinct actions or concrete behaviour, it sheds light on the general meaning of the rule. Insofar as interpretation as a product is always the outcome of a choice between several possible meanings—providing a given content to the rule although without necessarily exhausting the various possible acceptable meanings—it underscores the fact that the positivity of law is the product of a legal policy. In that sense, positivity is the translation of an everlasting struggle for law, for control over the meaning of rules, whether it is at the stage of the law’s formation or of its application. In this respect, interpretation is the primary battlefield in which different actors, bodies and subjects fight over both abstract and concrete issues.

D. Interpretation and Rationalisation of Law The act of interpretation is rational and based on the application of legal reasoning. But in exactly what way the reasoning is legal also has to be specified, as it is not always explicit. Its various aspects are not necessarily apparent, and it sometimes comes out only in the final result. It is rarely brought out, except in the case of motivation, which in principle is only

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required for judicial decisions. Hence, doctrine too tends to favour motivation and—since motivation includes a complete rational formulation—finds the core or essence of interpretative reasoning in motivation. However, while interpretative reasoning is legal, it is not necessarily judicial. It is legal in its objective, but it is not so in its motives, by nature. In this respect, the purpose does not necessarily consist of restoring a meaning that is objectively or implicitly contained in the rule, and that holds true for unilateral interpretations. In the latter case, it could be a matter of justifying a hypothesis, criticising an opposing theory, establishing a claim or legitimising certain behaviour. It also holds true for concerted interpretation—so-called ‘authentic’ or ‘quasi-authentic’ interpretation, terms that are associated with authority and origin but not with the approach leading to it. Depending on the case concerned, concerted interpretation makes it possible to adapt to circumstances that were unforeseen at the time the rules were formulated, or to try and reconcile contradictory obligations, or even to avoid an amendment or revision. If there is a lack of mastery over the motivation behind interpretations, or if such control is not exercised, it seems like justificatory rather than fundamental reasoning—in which case, rhetoric or sophistic virtuosity is brought into play. In the background is legal policy—the instrumentalisation of the rule in order to make it known for purposes other than its own. Any political motivation to interpretation gives this process a historical rather than legal dimension and places it more within the framework of the rule’s future or present existence rather than in its essence as such. In that case, can the reasoning concerned be legal in nature? Would it not be confused with the indefinite use of all the resources of general logic, which itself remains open? For it to be otherwise, it is essential that it be possible to identify a given, legally mandatory method that would orient and channel the interpretation process by guiding its results in the light of preestablished canon. The problem with the interpretation method or methods is classical, and controversies often centre on this issue because they involve problems that are more than merely technical. Hence, with regard to treaties, the 23 May 1969 Vienna Convention tackles interpretation headon only when it deals with its methodological regulation. In practice, the unifying and guiding role that we would like methodology to play—by enabling it to describe interpretation legally and by confining it within a legally well-defined and contained process—is largely illusory. On the one hand, in any case, these methodological constraints are not applicable to concerted or authentic interpretation—the only one that is, generally speaking, mandatory and free. If concerted or authentic interpretation does exist, it also has to be taken into consideration and complied with in any subsequent interpretation, unless a fresh concerted interpretation is established. On the other hand, the methods invoked can hardly be unified into a single corpus or into a broad, uniform method. On the contrary, the plurality of

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methods ensures that they remain open and flexible, allowing them to be used for all purposes. Quite often, even within the framework of judicial decisions, their invocation seems to be only an opportune packaging of conclusions arrived at by other means. The process actually followed is different and may, for instance, be based on a compromise between judges in collegial jurisdictions or on the concern to deal carefully with all the parties to a dispute. The motivation expressed then runs a high risk of being ex post facto justification. It would not be useful to analyse the various methods that can be invoked here. Admittedly, the process can be rationalised by distinguishing between principles, rules and techniques in the light of their accuracy—that would bring us to the principle of good faith, the rule of recourse to the text and the actual effect technique (ut res valeat magis quam pereat), which seeks the full meaning of any provision. But the Vienna Convention, for instance, combines three types of virtually contradictory rules quite adroitly, with considerable balance: textuality; the various parties’ intention; and the purposes of the provisions. Starting with this range, the degree of audacity in the use of these methods is an indication and a measure of the interpreters’ freedom. Exclusive recourse to text points to an interpreter’s self-limitation and inadequacy—he is merely a servant of the text. As for the various parties’ intention, it is actually an empty concept referring to objective elements found in the context—the treaty’s history, which appears particularly in the preparatory works, all the relevant instruments for its application and even those of the law in force as well. Thus, interpreters have a much more open choice, because it is up to them to define the context to their liking and appraise it in their own way. If they finally decide to go by the aim of the text or norm and the function it fulfils, their freedom is optimised. It is then up to them to orient or rebuild the meaning based on the text’s aim, which is either not expressed or can easily just be a statement of intent with no immediate operative scope. A highly illuminating example of this has been provided by CJEC jurisprudence, which takes recourse to a ‘teleosystematic’ method that enables it to develop the authority and scope of community instruments—an audacity and power unknown to other international jurisdictions.

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12 Changing Fashions in International Law*

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O BROACH THE subject of international law is to trace a path skirting a pair of obstacles. The first is the conclusion that international law is futile, even ridiculous. Following this line of thinking, international law gets denounced as empty discourse, as misleading rhetoric that not only fails to play a real role in the world but even acts to camouflage the true intentions of states. From this perspective then, to designate international law as a ‘fashion’ would be to reveal it as vanity, as an ephemeral illusion quickly unravelled and rendered insignificant by contact with reality. However, this is manifestly not the case with international law: it has to be taken seriously, not least because it is an element that governments themselves take into consideration during their decision-making processes and is reflected in their behaviour on the international stage. That appeals to international law sometimes smack of hypocrisy—states seemingly exploiting it to justify questionable decisions—only reinforces the fact that international law is a real force in the world. The second obstacle consists in the fulminations, replete with fire and brimstone, made by so many who inveigh not against international law but against its supposed decline. This law, they thunder, is no longer what it once was, its noble and pure principles having been traduced by adventurers and ignoramuses; indeed it is scarcely recognisable as law at all. Such condemnatory thinking results in a reactionary discourse and can be symptomatic of intellectual aging, a genuine peril that must be avoided. Let us remember Victor Hugo: reaction is the political term for agony. Keeping these two pitfalls in mind, let us begin our inquiry by acknowledging that international law is very much in fashion these days. It is frequently invoked and mobilised by a host of actors, some well outside the traditional framework of professional diplomacy and the academy. In particular, nongovernmental organisations (NGOs) and the media make frequent reference to international law. But what does it really mean to claim that something is ‘in fashion’? At first glance, the expression connotes

* Previously published as ‘Les phénomènes de mode en droit international’ in SFDI (ed), Le droit international et le temps: Colloque de Paris, 2000 (Paris, Pedone, 2001) 49–65.

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impermanence, fleetingness, perhaps even futility. Turning to Webster’s Dictionary, we can find support for this meaning: ‘the prevailing mode or customary style in dress, speech, conduct, or other things subject to change’.1 In this (fleeting) sense, a given fashion is quickly replaced, though it may well return in another form (as the enduring appeal of ‘retro’ styles suggests). This particular understanding of the term should, however, be treated as decidedly secondary when we consider a subject as weighty as international law. Instead, we are much better served by relying upon another definition provided by the same dictionary: ‘custom; usage; common practice’. What are the domains (including social ones) that are concerned with international law? These have grown progressively and in such a way as to enable us to identify successive stratifications within a heterogeneous ensemble. International law was originally a ‘law’ for ministries of Foreign Affairs, all so very traditionalist in their outlook that they looked upon new ideas with scepticism, resisted novel trends and remained locked into long-established procedures and protocol. It then developed into a law for international courts and international organisations more broadly. Such organisations operate in public view and are particularly interested in the conditions and the techniques leading to the creation, application and development of international law. In the twentieth century, international law became a law for academia, where enthusiasm for the system has been actively cultivated but sensitivity to intellectual infatuation and ideological fashions has also been heightened. Most recently, international law has become a law for NGOs and media entities, which devote themselves to supporting and spreading its values, even to shaping and revitalising them. Finally, international law is also becoming law for internal jurisdiction: it is inserting itself in a very striking way into the domestic law of many states. These various social segments are quite different one from another, both in terms of originators of and subscribers to fashions. International law has been considered successively from the angles of procedure, technique, principles, system, values and finally, as a component of domestic law. At one time the law or language of an educated and opaque aristocracy and, until recently, a law of clerks and scholars, international law today has becoming an ideology and a discourse of the middle class. If international law can be said to be fashionable, much must turn upon the notion of fashion itself. Here we are referring not to its scientific or technical aspects, or indeed to doctrinal international law resulting from developments or intellectual systems—even though simplified and weakened. Law can be understood as a ‘fashionable’ phenomenon through the intermediary of media-driven norms, which encourage its being perceived through the lens of ethics exclusively—that is to say, of those ethics that 1

Webster’s New Universal Unabridged Dictionary (Cleveland, Pedone, 1983).

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correspond to the general atmosphere of the day. Thus being in fashion simply means that a mirage of appearances exists in international law, whether it relates to values, to promotion of an ethic of conviction or to the power of a mobilising discourse. The fashion of the day superimposes itself upon that complex and technical international law familiar to practitioners and academics and indeed seeks to replace that traditional law with a new form, which is sparkling and simple and at least in part whimsical. In short, it is not so much a matter of knowing international law as it is of transforming it— initially in spirit, subsequently in applicability. Fashion in this sense thus suggests the dual aspects of liberation and constraint, which is a rather normal pattern. Think, for instance, of how the aspect of liberation correlates with Paul Valéry’s reminder about fashion being the ‘fantasy’ of law; or of how the aspect of constraint makes us reflect upon Roland Barthes’ analysis in the Système de la mode,2 in which fashion is conceived as a semiological phenomenon—ie, as an ensemble of symbols enclosing individuals in a network that is greater than they and from which they cannot escape. Fashion, then, becomes in an important way a variant of social necessity. This fashion can nevertheless become self-conscious, ceasing thereby to be an unconscious process and becoming instead a deliberate and rational action, oriented towards an end more ethical than aesthetical. It finds its appeal in what we can call a ‘philosophy of the will’, and far from being a spontaneous phenomenon, it is one that is provoked. But it does not follow the official channels, which would lead to the formation of new rules applicable for governing relations between states; instead, it seeks to subvert and even supplant those channels and their established patterns. Thus we move from fashion to the realm of creation and implementation of norms. Let us illustrate this development by examining the remarkable ideological about-face that has transpired over the past thirty years. In a phrase, we have gone from an international social law to a criminal international law. That international social law, cherished by Third-World states, was a law of collective liberation as well as of the equality of nations (states, really) under the sovereign rule of their governments. It invoked the right to development, the concept of the common heritage of mankind, and compensation for inequality. By contrast, criminal international law, promoted by developed countries, is oriented towards the protection of individuals and civil societies—protection against their very governments. Such protection might even require coercive means. Hence we may be dealing here with the same ‘law’ and even the same mechanisms, but we are not dealing with the same milieu, philosophy or forces. Mao’s famous dictum on the East Wind prevailing over the West Wind may well be invoked here, save that it requires being updated to reflect that it seems instead to be the North Wind that is prevailing over the South Wind, albeit perhaps only temporarily. 2

R Barthes, Système de la mode (Paris, Seuil, 1967).

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This is more than just fashion, however. We must never indulge in the error of reducing fashion to insignificance, even to juridical insignificance. For while fashion may not fundamentally alter the structure of international law—transforming its DNA, so to speak—it does function similarly to a lighting engineer at a theatre, revealing or highlighting different aspects of the same underlying reality. In so doing, it gives the impression of changing the very meaning of that reality. International law, as we know, is versatile. The same law employing the same techniques can produce the law of the European Communities, the European Convention on Human Rights, as well as the most humble of bilateral treaties. Fashion thus says little about the law itself but a great deal about its orientation, its context and its intellectual and political setting. But fashion is also a sign of failure on the part of a strategy of change, since it may well express the degradation of the surface phenomenon yet at the same time lack a fundamental hold upon the positive mechanisms governing the formation and evolution of law. So where does this leave us today? Are the recent developments, once put in perspective, of such a nature as fundamentally to modify the structure of international law? Can we speak, as so many do (generally activists or politicians rather than legal scholars and practitioners), of a ‘new international law’, just as we might speak of a ‘new cuisine’, of ‘new philosophers’ or even of the ‘new poor’?

I. South Wind, North Wind One of the functions of fashion is to charm the world and to provide it with dreams. One could of course call this an irrational phenomenon, a spell, an illusion—even a lie. All the same, it cannot be denied that fashion always reveals something about the real world. It concerns the periphery of law more than its centre: the dream lacks the energy to modify international law, let alone to put that law at its service. Instead, the dream simply expresses a legal ideology, which can then either be inscribed (or not, as the case may be) into positive law through the usual channels, to wit through agreements between states. But the dream is not madness, unless it is a very logical kind of madness. It can be articulated by and consistent with certain organising principles. This consistency reinforces the dream’s ability to influence and seduce the spirit—notably in France, where systems retain large followings and where, as André Thirion reminds us, intellectuals can show themselves to be much more sympathetic to reasoning than to reason itself.3 These organising principles tend to reflect the prevailing mood; they convey the spirit of the time much more than they result from any intrinsic evolution of law. They are outside the law rather than inside it, even though 3

A Thirion, Révolutionnaires sans révolution (Paris, Laffont, 1972).

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they provide an adapted representation of it. It is, then, remarkable that in thirty years we have gone from an international law of liberation, solidarity and hope—with the right to development, summarised more often than not by a slogan rather than by a rigorous intellectual corpus—to an international law of protection, compassion and repression, featuring humanitarian law and international criminal courts. It remains the sword of justice in a certain way, except that the sword of the executioner has come to replace that of the liberator.

A. The South Wind The appellation ‘South Wind’ refers to the conception of international law that became dominant during the prolonged period of decolonisation— during the 1960s and especially the 1970s—and exerted a very profound influence upon French doctrine as well as upon a great number of French scholars. That conception was characterised by the consecration of concepts, principles and methods resting upon the consecration of a new international order, often qualified in economic terms but with ambitions extending far beyond that dimension. i. The Concept of a ‘New International Order’ The concept of a ‘new international order’ as an organised collection of rules in any given domain was defined on various levels: the economic level to be sure, but also the nutritional as well as the informational.4 It presupposes an ambitious international law, interventionist and even collectivist in nature and inclined toward redistribution. One of its elements is the notion of the ‘common heritage of mankind’,5 a notion that surfaces in a number of conventions. While many of these were of little consequence (the 1979 Moon Treaty, which was not ratified by any space power, comes to mind),6 the notion’s inclusion in the 1982 UN Convention on the Law of the Sea marked its zenith—as well as its watery grave.7 It was its zenith because awarding this status to the deep seabed presaged the development of a strong management mechanism and a redistribution of wealth toward poorer countries, through the agency of the International Seabed Authority.8 It was its 4 S Sur, ‘Vers un nouvel ordre de l’information et de la communication’ (1982) Annuaire français de droit international 45–64. 5 A Ch Kiss, ‘La notion de patrimoine commun de l’humanité’ (1982) 2 Recueil des cours de l’Académie de droit international 99–256. 6 Agreement Governing the Activities of States on the Moon and Other Celestial Bodies (15 December 1979), notably Art 4. See H Thierry, Droit et relations internationales (Paris, Montchrestien, 1984) 259–68. 7 United Nations Convention on the Law of the Sea (10 December 1982), notably Art 136. See Thierry (ibid) 107–238. 8 Section IV (The Authority) of Part XI (The Area) of the Convention on the Law of the Sea.

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grave because of the refusal of the United States to sign the 1982 Convention, resulting in modifications in 1994 that essentially purged this statute of its substance.9 It is worth pointing out, moreover, that the concept was not referred to in the 1959 Treaty on Antarctica or in the 1967 Treaty on Extra-Atmospheric space.10 One could add to this list the concept of ‘peoples’, since under the South Wind conception international law is ultimately to become a law of peoples and merge with the imperatives for those peoples’ liberation and development—becoming what one author terms the social law of nations.11 These very ‘people’, however, have tended to identify themselves with their states in such a way that once political decolonisation is achieved, the reference to peoples become purely rhetorical. It should be recalled that this is not the first time that the term ‘peoples’ has been denatured: the UN Charter itself, after emphatically highlighting the role of ‘peoples’, goes on to conflate them routinely with their governments.12 ii. The Principles of the South Wind Conception As to the principles of the South Wind conception, these largely boil down to the principle of compensatory inequality.13 This consists of granting benefits (without demanding any quid pro quo) to less developed countries, such that they may be able to compensate for their relative backwardness through the medium of equitable exchange conditions. Equality is not considered as a principle but rather as a goal: the provisional inequality in operation to the benefit of the less developed is supposed to facilitate this goal’s attainment in a rather dialectical manner. This situation applies in the area of economic exchanges, but it can equally pertain to that of the environment, given that demands or constraints upon developed countries are not expected of developing countries. Even in the area of human rights and democratisation the concept can be seen. The development imperative thus leads to a double standard, which both exonerates less developed countries 9 United Nations General Assembly Resolution 48/263, Agreement Relating to the implementation of Part XI (28 July 1994). See J P Quéneudec, ‘Le “nouveau” droit de la mer est arrivé!’ (1994) Revue générale du droit international public 865–70. 10 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies (27 January 1967). The Preamble invokes the ‘common interest of all mankind’ and states that ‘the exploration and use of outer space should be carried out for the benefit of all peoples, irrespective of the degree of their scientific or economic development.’ 11 A Pellet, ‘Le Droit international du développement’ (2nd edn, 1987) 1731 Que sais-je? (Paris, Presses universitaires de France) 4. 12 The Preamble to the Charter of the United Nations begins with the formulation ‘We the people of the United Nations’ and concludes with the statement: ‘accordingly, our respective governments, through representatives . . . have agreed to the present Charter of the United Nations’. Ibid, 5–47, emphasis added. 13 Société française de droit international, Pays en voie de développement et transformation du droit international, Colloque d’Aix en Provence, 1973 (Paris, Pedone, 1974).

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of certain obligations and imposes obligations upon developed countries designed to assist those in need of development. One can add the promotion of imperative rules, or jus cogens, such as stipulated by the 1969 Vienna Convention on the Law of Treaties.14 That Convention serves as a sort of magic beam pulverising treaties that contravene it, such that one might expect it to cleanse international law of all instruments in contradiction with its norms. These norms are destined to play a purgative role, in the sense of purifying international law by eliminating any treaties that would include commitments not in conformity with the superior principles of the international community of states as a whole. But the content of such norms remains unclear, betraying an evident lack of grounding in the positive law of the time. Even more vaguely, it is expected that the future appearance of new norms of jus cogens might lead to the termination and nullification of treaties that were not in violation of any such norms at the time of their negotiation. Thus jus cogens becomes a Sword of Damocles, invisible for all conventional engagements. iii. The Methods of the South Wind Conception The methods of the South Wind conception reveal a strong preference for multilateralism, with particular consideration placed on resolutions of the UN General Assembly. The latter is an organ that proponents of the conception would like to elevate into a truly legislative body—thereby conferring the power of shaping international norms onto that newly independent and developing majority of states.15 The interest of all humanity is understood to coincide with the aspirations of these states, such that they can legitimately consider themselves collectively as international legislators. At the same time, these methods are juridical. It is believed that through solemn declarations or through the agendas of international institutions, changes can be brought about in the real world—an attitude entirely characteristic of an ideologically based conception of the world. All of the above is well known. These hypotheses defined a generation of internationalists. Today, however, they appear old-fashioned and are perceived as belonging to the realm of history—and not even to the history of law, at that, but rather to the history of ideologies. The appeal of the theses dulled before disappearing: one can today scarcely even remember the considerable influence they exerted upon the brightest of spirits, while in the area of positive law they have vanished, leaving hardly a trace behind. Ultimately, what the theses truly ended up strengthening was the sovereignty of states, given that the latter were the legitimate expression of 14 Vienna Convention on the Law of Treaties (23 May 1969), particularly Arts 53, 64 and 66. Ibid, 50–78. 15 M Bedjaoui, Pour un nouvel ordre économique international (Paris, UNESCO, 1979); M Bettati, ‘Le Nouvel Ordre économique international’ (1985) 2088 Que sais-je?.

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peoples. Jus cogens, the exception to this trend, remained in an indefinite and dormant situation. After an entirely theoretical consecration, jus cogens became locked and ultimately absorbed into the realm of doctrinal controversy.16 Thus, through a ruse of legal reasoning, the theses of the South Wind led to a consolidation of the most classical form of positive law— a demonstration successively of both the power and the ephemerality of fashion.

B. The North Wind The North Wind has been blowing since the end of the East–West confrontation and testifies to the profound ideological about-face that followed. It expresses the dominance of the concepts upheld by developed lands, the countries of the North. It rises in an entirely different ideological climate, defined by fear more than by hope. It does incorporate certain of the earlier aspirations but in a context and with methods that radically alter their meaning. i. A Paradigm Shift What behoves us here is to underline what distinguishes new aspirations from the previous fashion, namely the climate change that they convey. First, we moved from a preoccupation with the long-term organisation of a pacific world order to one concerned with the ad hoc management of crises and conflicts, exploding successively in diverse regions of the world and threatening the stability and even the very existence of fragile states. Such crises proved to be impossible to contain or resolve without external intervention. We are no longer aiming to forge a ‘new’ order: the abandonment of this goal has not brought about a substitute scheme. We are no longer dealing with the collective and triumphant demands of Third-World states but rather with the disintegration of a number of those states. It is no longer a matter of foreseeing and programming but instead of taking urgent action—often of an improvisatory nature. To that end, few worry about formulating legal doctrine: both the chaotic evolution of peacekeeping operations and especially the legally questionable circumstances of NATO’s armed intervention over Kosovo attest to this.17 Secondly, attention is paid in this context not to peoples but to individuals—particularly victims, especially if the victimised individuals are minorities, which are assumed to be weak by definition. The problem is not one 16 It should be noted that in the past thirty years there has not been a single major doctoral thesis published in France on jus cogens. 17 On peacekeeping, see Fondation pour les Etudes de Défense (now Fondation pour la Recherche Stratégique), Leçons de terrain—Cambodge, ex-Yougoslavie, Rwanda, Somalie (Paris, Fondation pour les Etudes de Défense, 1995); on the NATO intervention, see the series of studies published on this subject by the Annuaire français de droit international in 1999.

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of development but of survival. Ambitions have been scaled back, the rude revenge of the principle of reality. There was a time when happiness was a new idea. Henceforth we do not discuss the well-being of peoples or of individuals but rather the punishment of their executioners. ii. The Executioner’s Metaphor This executioner’s metaphor is reminiscent of Joseph de Maistre, who famously devoted a page in the Saint Petersburg Dialogues to the executioner as a foundation of social and political relations.18 The executioner, observed de Maistre in a rather Hobbesian argument, is both the terror and the link of human association. Men unite more easily for negative reasons than they do for positive ones. Alliances are kept together by threat; they are created by their enemies. The metaphor can even be extended further, for the executioner has two faces, nearly contradictory in nature but more accurately complementary, since they answer each other through their opposition. The first face of the executioner is that of the man responsible for massacres: the man who commits genocide, who provokes collective reaction against him by all those who condemn his actions. Humanity—international society, in other words—is no longer united merely by collective hope but by a common indignation against diabolical behaviour. This indignation solders people together in joint defence of their assaulted values. It is here that the second face of the executioner presents itself; for this joint response is in effect a cry for justice, for international criminal action, for a legal recourse to bring international criminals to account—for civilised and legitimate executioners, in other words (following the thought of de Maistre), who re-establish justice and thereby allow the pacification of civil society. This international law of coercion and of the suppression of criminality has little in common with that of Georges Scelle or René-Jean Dupuy, though it may elicit the dawn described by Giraudoux to the wife of Narses. iii. Some Nuance One must, however, bring some nuance to the impression, however largely justified, that the countries of the North are lecturing those of the South and forcing upon them norms that the former have not truly internalised, though they may pay them lip service. First, of what do these values consist? Among others we find the values of reconciliation after confrontation, of the disarmament of civil society and of the abolition of the death penalty.19 18

J de Maistre, Les Soirées de Saint Petersbourg (Paris, Rodolphe de Maistre, 1821) 32. Amnesty International launched a campaign some years ago against the death penalty, which has been widely relayed by the media (many elements of which take particular pleasure in denouncing the United States). All Member States of the European Union have abolished the death penalty. 19

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These values, of course, are European values. As we know, these values are not always welcomed with open arms in the United States—quite the contrary, such that in certain respects that country finds itself exposed to moral condemnation and open protest. At such times, one has the feeling that this North Wind corresponds with the effort to project universally a law that is in fact only that of the European Union. It is as though European countries were implicitly projecting those values accepted (and guaranteed) at the community level to international society at large. But these countries dispose neither of the necessary means nor of the attention of a collective audience, both of which are needed to assure global acceptance of the values. The EU thus places itself in a normative posture—a posture usually characteristic of weak countries. This posture allows the Union to claim a universal message but does not grant it the ability to back up that message through international law, strengthened by the intrusive techniques developed in European Community law. This universalisation of European Community values is unable to support itself through any ‘communitarisation’ of the mechanisms of international law. Accordingly, we remain in the domain of legal ideology rather than that of positive law. Second, the promotion of these values is often conveyed through appeal to international judges—via criminal jurisdiction as well as through more classical jurisdiction. Judges, from the perspective of their proponents, appear to offer resolution, through a single approach, to the problems of the formation and application of the necessary law. They are tasked both with ascertaining the existence of the rules they follow and with applying them. At the same time, judges represent the link between positive law and ethics, between the abstract exigencies of justice and its individualised application in specific cases. Judges are thus invested with a near-sacred mission, embodying as it were the symbolic successor to that famous ‘mission civilisatrice’ that seems only to express itself through repression. One also discerns here that old alliance of judges with the very concept of equity—of the judicial Antigone opposing herself to the political Creon, of judge as recourse for the indignation of civil society against the indifference and moral compromises of interstate relations. Yet this is but an illusion. The law that judges apply, the authority they exercise, the coercion they put in motion, the execution of the sentences they pronounce—they all depend upon authorisation by and support of states. States, as it happens, are often satisfied by a purely symbolic role of the judge, whose a posteriori intervention masks the incapacity of states to prevent those very crimes the judge condemns. Jus cogens also reappears in this context, but its meaning has evolved substantially. Jus cogens is no longer the instrument of aggrieved developing countries demanding redress; rather it is the supposed vehicle for human rights and humanitarian law, at the service of international judges. The concept thus lends itself to more ambiguous interpretations, even to

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reversals with respect to its initial ideology. It can also return to its origins, however, for instance if one were to direct it towards a jurisdictional auditing of UN Security Council decisions.20 This idea is itself in fashion these days. Its success would lead, in the name of the law, to a subordination of the maintenance of international peace and security to a juridical approach. Should such an approach prove effective, it would threaten to constitute a supplementary cause of paralysis for the Security Council and to prolong the shift from preventative techniques towards a posteriori mechanisms. One thinks of Don Ottavio dreaming of bringing Don Giovanni to trial rather than of fighting him on his terrain. But have we finished with fashion? Not necessarily, because one can also discern a well-intentioned mistake, which could play a useful role. While architects are necessary, we also need lighting technicians. Fashion teaches us about the expectations and the needs to which law must respond. It can even anticipate the development of law, albeit in a limited, uncertain and selective capacity. Is this the process that is now underway? Could one consider that the contemporary demands and proclamations signify, or at least foretell, the apparition of a new international law—a law that would both realise and transcend the fashion seemingly driving it forward?

II. A New International Law? This ‘new international law’ could take shape by combining a variety of innovative themes or presentations. It might be said to represent a definite progression, even a qualitative leap with respect to its predecessor. However, analysis and evaluation of its constituent elements reveal that such a ‘new’ law must be put into perspective; that it is probably more fanciful than practical; and that in any event it would not fundamentally alter the architecture of classical international law.

A. Constituent Elements This new international law is said to rest upon the synthesis of a series of developments, of which each taken alone would be significant—while the combination thereof triggers a multiple innovatory impact. At its heart lies that ancient debate on state sovereignty. This new law aims to see the obstacle to progress that is sovereignty reduced, perhaps even eliminated altogether. In this sense, the new law might strike one as following a somewhat ‘retro’ fashion. Some of its elements relate to the extension of international obligations (the enhancement of both depth and effectiveness of such obligations), others to techniques of their recognition and their application, 20 M Bedjaoui, Nouvel ordre mondial et contrôle de la légalité des actes du Conseil de sécurité (Bruxelles, Bruylant, 1994); Société française de droit international, Le Chapitre VII de la Charte des Nations Unies, Colloque de Rennes 1994 (Paris, Pedone, 1995).

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and still others to the democratisation of the formation of such obligations. The new law would thus seem to rest upon a set of norms considered as being enhanced, diversified and democratised. i. Enhanced Norms There are a few elements to be considered under this subheading that concern the reinforcement of legal effectiveness. The first elements deal with the extension of international regulations. We are said to be witness to the affirmation of universal rules, from which no states are able to opt out and by which no state can pretend not to be affected. One minor variant holds that the development of multilateral regimes sketches a matrix for a subsequent mix of regulation and mechanisms of collective, if not institutional, application—such as the Nuclear Non-Proliferation Treaty,21 the Chemical Weapons Convention22 and, in a different context, the World Trade Organization (WTO).23 One could add the affirmation of the superior value of certain rules or obligations, more in function of their ethical content than of any technical procedure of clearly identifiable formation. One could also note the extension of international law into new domains, domains traditionally left to the writ of sovereign states, such as matters of human rights and environmental protection. A second group of elements consists of the conditions of the application of the law, namely the appearance of an obligation of transparency of state behaviour in the international order, involving the development of monitoring and verification procedures in areas as diverse as disarmament, human rights and environmental protection. This obligation is said to respond to the growing demand for such laws in domestic contexts that are increasingly penetrated by international regulation. The use of coercive international procedures in order to compel the application of legal obligations displays a hierarchy of responses to a given violation, each of a different register. The recourse to individual countermeasures in support of a claim to an infringement of a right and the recourse to such measures in support of broader international interests may thus be assimilated—particularly when such aggrieved rights or interests are of a collective nature— into ‘international sanctions’, that is, punitive measures taken in retaliation for the violation of law. The recourse to armed force is reserved as the 21 Treaty on the Non-Proliferation of Nuclear Weapons (New York, 1 July 1968). See J Goldblat, ‘The Nuclear Non-Proliferation Regime—Assessments et Prospects’ (1995) 256 Recueil des cours de l’Académie de droit international 13–192. 22 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Paris, 13 January 1993). See La Convention sur l’élimination des armes chimiques, Colloque de l’Académie de Droit international (La Haye, 1994). 23 Marrakesh Agreement (15 April 1994). See Société française de droit international, La Réorganisation mondiale des échanges, Colloque de Nice, 1995 (Paris, Pedone, 1996).

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ultimate means to bring an end to grave violations of humanitarian law, thereby placing force at the service of law. ii. Diversified Norms On this topic we might mention the diversification of normative techniques, which involves standards, best practices and non-conventional instruments of consultation. One might also think of the exponential growth in derived law that emanates from international institutions. We underline in particular a growing ‘jurisdictionalism’ in international law, which features a proliferation of international jurisdictions and adds to the noble International Court of Justice (ICJ) various arbitral tribunals and specialised jurisdictions—not to mention the various special international criminal tribunals created in addition to the International Criminal Court. The ongoing criminalisation of international law should also be mentioned: concerning both states (with the notion of an international crime of state) and individuals directly. Whether international law pursues or protects such states or individuals, it does so with a body of independent international magistrates whose arrival tolls the death knell of the traditional exclusivity of criminal competence for sovereign states. An entire spectrum and gradation of obligations is progressively coming into shape, from recommendations (in various forms) addressed to states and dependent upon the good will of the latter, to comminatory norms that individuals must respect lest they face sanctions from an international criminal jurisdiction. iii. Democratised Norms The development of democratised norms is highlighted by the growing role of individuals and private organisations under international law. Not only are such individuals or groups the object of particular protections and duties by virtue of international regulation, but they even appear to be the source of these rights and obligations, or of their application. Individuals are thus not only demanders but also providers of norms in various areas, while at the same time they participate in the application of those norms through diverse activities including monitoring and humanitarian action. The role of NGOs has become increasingly manifest in international conferences. They played a tremendous part, for instance, during the elaboration of both the Ottawa Convention24 and the Rome Statute on the institution of the International Criminal Court.25 NGOs regularly mobilise 24 Convention on the Prohibition of the Use, Stockpiling, Production and Transfer of AntiPersonnel Mines and on their Destruction (18 September 1997). See M Bettati, ‘La Convention’ (1997) Annuaire français de droit international 218–26. 25 Rome Statute of the International Criminal Court (17 July 1998). See L Condorelli, J-A Carrillo-Salcedo and S Sur, ‘La Cour pénale internationale en débat’ (1999) Revue générale de droit international public 7–46.

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for international conferences relating to the environment. Their role in the failure of the 1999 WTO Ministerial Conference in Seattle was spectacular.26 But even before that landmark event, NGOs had played important roles: the 1995 Greenpeace campaign against French nuclear testing in the Pacific had, for example, played a non-negligible role in the ultimate outcome, the Comprehensive Nuclear-Test-Ban Treaty (CTBT).27 We are thus witness to the constitution of an international civil society that conducts its own diplomacy, based upon its own priorities—priorities that society has been able to impress, perhaps even impose, upon states. Concerning the application of the law, NGOs initially reacted in a rather ad hoc, spontaneous fashion to humanitarian crises. However, such organisations are becoming increasingly officially associated with intergovernmental organisations, notably in civilian peacekeeping operations. They might even contribute directly to international judicial action in the future, since the Rome Statute recognises them as ‘reliable sources’ for the identification and codification of international crimes.28 NGOs also play monitoring roles in areas such as disarmament, human rights and environmental protection. Such roles are generally non-official, but the activism that characterises NGOs, as well as the status of observer which is largely accorded them, lends to them growing importance.29

B. Evaluation The above listing of the attributes of the new international law is impressive, but does it stand up to closer scrutiny? To caricaturise the question mildly, we might claim to be witness to a number of Potemkin villages that offer an enchanting presentation of international law—villages the apparent features of which are reduced, if not outright eliminated, when exposed to the light of day. In any case, these apparent developments need to be put into context. So let us follow the enumeration of the previous section by doing just that. 26 The failure of the Seattle Conference was consummated on 3 December 1999. Over 1,200 organisations from 87 countries had previously signed a document entitled Déclaration des membres de la société civile internationale s’opposant aux négociations commerciales du Cycle du millénaire. See J-P Ferrier, L’Année diplomatique 2000 (Paris, Gualino, 2000) 108–14. 27 While the Greenpeace campaign was not able to halt French nuclear tests outright, it did lead to a reduction of their number and accelerated their ultimate end. The CTBT was adopted by a resolution of the UN General Assembly on 10 September 1996, consensus not having been reached during the preceding disarmament conference. The treaty is not yet in force, pending the signature and/or ratification of nine states listed in Annex 2 of the Treaty. See P Tavernier, ‘L’adoption du traité d’interdiction complète des essais nucléaires’ (1996) Annuaire français de droit international 118–36. 28 Art 15. See Condorelli, Carrillo-Salcedo and Sur (above n 25) 37–38. 29 Among various examples, one might cite the following statement by Cora Weiss, President of The Hague Appeal for Peace Foundation, during a meeting between select NGOs and the Secretary-General of the UN: ‘The UN and governments can’t survive without the partnership of organised civil society.’ International Herald Tribune, 24 May 2000.

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i. The Extension and Authority of Norms We can begin with the extension of norms. The universality of international norms is in fact ephemeral in most cases. The term actually refers to the capacity of a rule to become universal rather than juridical reality, as is particularly clear in the field of human rights. Even for those rules whose universality is not in doubt—eg, much of humanitarian law—the precise content of the rules is the object of much debate. Multilateral regimes are weakened by American unilateralism, which either competes with them or ignores them outright, depending on the case. The partial as opposed to complete success of the Convention on the Law of the Sea,30 to say nothing of the refusal of the United States to ratify the CTBT,31 highlights this reality. As to the superior authority of certain norms, it must be noted that jus cogens remains essentially a doctrinal notion,32 and the hierarchy of norms—more broadly, the theory of obligations—remains embryonic in international law. The UN Charter does assert, through Article 103, primacy over any other legal document in conflict with it; but here we can hardly speak of a ‘new’ international law. As for domains recently regulated by international law—such as human rights and environmental protection— that law in most cases translates into the development of bureaucratic organs and procedures: the essential aspects that it aims to affect remain under the control of domestic law or perhaps of extraordinary and limited international conventions. ii. The Conditions Surrounding the Application of the Law Let us next examine the conditions surrounding the application of the law. The aforementioned transparency is hardly a legal obligation. Verification follows a strict principle of specialisation and is effective only if rooted in specific treaties.33 What is more, its benefits flow disproportionally to certain states, and it is thus in conformity with traditional forms of inequality. 30 The success of the Convention is relative insofar as the content of the Convention in force today is substantially different from that initially reached in 1982, due to American pressure. 31 While it is true that it is the US Senate that has refused to provide the necessary ratification of the Treaty, one can hardly say that presidential administrations have devoted much energy towards that end. B Sitt, ‘Le rejet du TICE par le Sénat américain: un revers pour l’arms control nucléaire?’ (2000) Annuaire français de relations internationales 741–46; S Sur, ‘A propos du TICE: les Etats-Unis entre l’unilatéralisme et le multilatéralisme’ (2000) Annuaire français de relations internationales 747–58. 32 Despite much talk devoted to jus cogens, the concept has rarely seen practical application. One might argue of course that it has played a dissuasive role—and therefore its invisibility does not signify ineffectiveness. Nonetheless, one can in all fairness seriously call into question the existence, even the utility, of a notion the content and juridical regime of which remain so unclear. 33 S Sur, ‘Vérification en matière de désarmement’ (1998) 273 Recueil des cours de l’Académie de droit international 13–102.

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As for the growing penetration of domestic law by international norms, we note that this remains subject to a fundamental dualism, so that in reality any such penetration is a result of decisions taken by the domestic authorities themselves. In light of this, it is clear that only the most perfected systems accept such penetration. Moreover, any such penetration faces a choice based on principle—and it is apparent that in the United States, to cite one example, the domestic application of international conventions faces significant obstacles, not least of which inheres in the federal structure of the state. One should therefore take a position of healthy scepticism with regard to that overly Euro-centric view that tends to consider the ‘new international law’ as an embryonic form of community law. Finally, let us examine the development of coercive measures to enforce the application of law. If we are dealing with individual countermeasures, then the latter convey the fact that each is judged on the merits of its own case—not to mention that the effectiveness of such measures is contingent upon the relative power of states. If it is a question of collective measures, even of measures decided upon by the UN Security Council, experience has shown that their effectiveness is highly inconsistent, and after an initial phase of enthusiasm, such sanctions tend to be criticised as either too weak or hitting the wrong targets. As for the recourse to armed force in order to protect humanitarian law, most notably witnessed in the 1999 case of Kosovo, it must be pointed out that such use of force has yet to be properly justified in legal terms—its juridical foundation—aside from the fact that it has been justified under an assumed doctrine of humanitarian intervention.34 iii. Techniques of Recognition and Application of Norms If we decide to rely upon techniques of recognition and application of norms, the conclusions of our analysis are no less relative. As far as concerns the diversification of normative techniques, in practice the latter frequently means a weakening of legal obligations, a juridical rhetoric lacking true consistency and little real effect beyond that of some bureaucratic reshuffling. The proliferation of jurisdictions should not be overestimated: one should bear in mind the growth in the number of states and the multiplication of legal instruments. Moreover, this proliferation is not without drawbacks, since it highlights the absence of a clearly pronounced international judicial system and heightens the risk of contradictory jurisprudence. The criminalisation of international law must also be cautiously evaluated. Certainly the creation of international criminal tribunals by the UN Security Council should be welcomed, but it must simultaneously be regretted that up to the present the chief malefactors have yet to be held to account before such tribunals. The effectiveness of international law should in any case be 34 S Sur, ‘Aspects juridiques de l’intervention de pays membres de l’OTAN au Kosovo’ (1999) 12 Défense Nationale 44–62.

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judged upon its ability to prevent crime rather than upon the punishment it applies to violators. As for the International Criminal Court, one should note that it furnishes a useful pretext for states to shirk responsibility in exercising their own criminal competencies in delicate instances. It thus risks becoming a decoy. The impressions generated by the United Kingdom, that paragon of the Rome Statute, in liberating Augusto Pinochet, or by France in ‘forgetting’ to detain a foreign officer alleged to have engaged in torture are hardly positive. It would be regrettable if the criminalisation of international law were to lead to internal decriminalisation. We should also take note of the fact that the International Law Commission (ILC) occupies a crucial position at the heart of this supposed development of a ‘new international law’, as do the obiter dicta of certain legal decisions and various opinions, even individual or dissenting opinions.35 It is fashionable to identify and promote the slightest indications of dissidence, under the assumption that these demonstrate evolution and modernity. Such promotion lies at the periphery of positive law, constituting criticism rather than recognition of such law. One of the aspects of this fashion is thus being not of a law of legislators but rather a law of activists or lawyers—lawyers who like to see themselves as legislators but have not (yet?) attained that status. The ILC serves as a clear example: acting as a link between doctrine and diplomacy, the Commission would like to see itself as a sort of international legislator; but its contributions to positive law over the past thirty years have been slight even when it has tried to promote the formulation of new laws over its rather less glamorous and more modest task, the codification of existing law. iv. The Role of Individuals One final word on the extension of the role of individuals, more specifically on the spectacular activism of NGOs, which is largely directed toward the promotion and/or development of international law. To be sure, this activism has positive aspects and plays a useful role even beyond the purity of motive that mobilises its adherents. The latter formulate new demands, assist in setting the priorities for future international regulations, focus public opinion on real problems and help to offset the deficiencies in the field of extant specialised international institutions. Nonetheless, it would be excessive to see in this development any ‘democratisation’ of international relations or of the development of international law. There are a few reasons for this. First, the NGOs in question are based in certain states and convey those states’ political or cultural imprint. Second, such NGOs are themselves object of diverse efforts at manipulation, even if involuntary. Third, these 35 This is notably the case for jus cogens, around which a virtual discourse feeds itself— without, however, being able to reach any real level of agreement and consecration, its tenacious promoters notwithstanding.

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NGOs often leave much to be desired in terms of transparency (while demanding more of it from others), and the question of their representativeness remains a very open one. And last, it must be recalled that true democratisation can occur only through an enhanced role given to parliaments in matters of international engagement—and we remain very far indeed from such a development. At the end of the day, it is therefore appropriate to conclude that the developments sketched above do not fundamentally alter the classical architecture of international law; they simply shed light upon its potential.

C. An Unchanging Architecture One might have the feeling that the process of formulating law has undergone substantial modification, both through decomposition and the multiplication of normative techniques, and that states themselves are becoming less and less important as sources of law. Such a feeling corresponds to a very fashionable theme, more pronounced among politicians than among lawyers: Global Governance. In reality, this term is meaningless. Despite the effects and efforts of fashion, the monopoly of the state has proved resilient, and this fundamental unit of international law is accommodating the material diversification of that law. i. Global Governance and International Law The emphasis on this ‘global governance’ rests on the idea that for a number of issues of international nature, states are either unwilling or incapable of providing the necessary international regulation.36 Following the reasoning of ‘social necessity’ or that of spontaneous law, such regulations come into existence in any event via multiple, informal channels: networks, NGOs, private groups, international institutions—a mix of actors private and public, the distinctions between which are becoming ever more blurred. ‘Global governance’ would, following this logic, be an empirical response to the demands of globalisation. Under this framework, states would be progressively channelled, circumvented, overloaded and ultimately replaced, as they would ultimately prove to be incapable of surpassing the narrow constraints of national interest in order to play the game of functional differentiation so dear to Georges Scelle. In an open competition for the formation of law, the most appropriate practices thus become established. They do not necessarily have a defined legal status. They are a sort of custom of a new genre, based neither on the law of sages nor on that of savages, but instead on that of 36 The Commission on Global Governance, Our Global Neighbourhood (Oxford, Oxford University Press, 1995). P Moreau Defarges, ‘La Communauté internationale’ (2000) 3549 Que sais-je?.

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contemporaries. Witness the precautionary principle, a point of law the official legal status of which is hard to define but nonetheless informs a great number of behaviours. Fashion, thus understood, could be seen as becoming a veritable source of law in the Durkheimian sense—a sort of invisible element of Article 38 of the ICJ Statute or an element of interpretation serving as source for all other means of law formation. But such an analysis has more impact on spirits—notably those of the general public—than it does on reality, or more precisely on the structure of the methods of rule formation. Those who see law in this process are falling prey to the classic error: when discussing ‘sources’ of law, they confuse material sources with technical processes in law formation—the latter being the important factor. In this regard, there is nothing new under the sun. ii. The Fundamental Unity and Material Diversity of International Law The indisputably spectacular developments in international law do not place in question its fundamental unity, which has endured through the ages. States, through their agreement and engagement, remain at the heart of the formulation of law, whether that formulation occurs in droit originaire or derived law. Article 38 of the ICJ Statute, in its interstate interpretation, has not been called into question. The developments highlighted above draw their bases essentially from international treaties the flexibility and malleability of which increasingly represent the defining feature of international law. This is a law that lends itself to anything and can even become an instrument of legislation in the domestic orders of numerous states. It is at the origin of derived law (including European Community law), which commands the same productivity—when, for instance, the UN Security Council can create special international criminal tribunals or venture to establish a quasi-protectorate over Kosovo based upon the text of a single resolution.37 This fundamental unity is sometimes concealed by the diversification of the domains of law and the multiplication of sub-disciplines that aspire to a kind of autonomy—environmental law, humanitarian law, human rights law, international trade law, etc. But one should consider these various aspects of law as differing in a vertical manner rather than a horizontal one. Law is first and foremost a certain type of authority or power, tied to the nature of the responsibilities borne. Secondly, it is a set of procedures that, for written law, conditions its existence. Lastly, law is the vehicle of certain values. It is on this last point that fashion becomes front and centre, as if it could impose directly, through informal yet effective means, that force of conviction propagated by its adherents. But positive law is resistant to the variants of natural law—sophisticated or naïve; ever renascent but ultimately impotent. Legal idealism ultimately leads to depression. 37

United Nations Security Council Resolution 1244 (10 June 1999).

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13 Classic Security Systems*

P

EACE IS GENERALLY considered the ultimate value. Good will and a moralistic approach are by themselves unfortunately hardly sufficient to mould and guarantee the pacific behaviour of states or transnational groups bent on violent aggression: only a structured peace can accomplish that end. In practice, peace results from states’ primordial need for security. The desire for peace has been manifested in the sundry attempts both to theorise security systems and to put them into practice. Peace thus emerges as the founding myth of an ordered international society, the organising principle and the consequence of which is, and must be, to prevent the recourse to force. However, because the legitimate use of force can never be completely absent from such a system, the search for peace must be concerned with finding methods to restrict it.

I. The Value of Peace and its Limits Although peace has always been considered preferable to war, the latter has been not only judged legal but also justified, even celebrated, up until the middle of the twentieth century. Mussolini, for example, thought that war ennobled those peoples who were brave enough to look it in the face. Other less theatrical theses have justified war as a means of liberating peoples from the grip of colonial masters. One famous analysis of Marxist inspiration has even grounded the right to revolution in the ‘structural violence’ said to result from the deceptively pacific functioning of oppressive institutions. When legitimate rebellion has set in motion a violent repression, the true nature of the apparently peaceful domination is revealed. Terrorism for its part is justified as the use of redemptive and purifying violence in order to establish a just order.

A. The Dialectic between Peace and Just Wars Ethics and reason unite, however, to condemn war. The Preamble to the United Nations Charter makes this clear in stating the peoples’ intention ‘to * Extracted and translated from ‘Septième partie, Paix et sécurité internationales’ in S Sur, Relations internationales, Domat—Politique, 4th edn (Paris, Montchrestien, 2006) 425–47.

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save succeeding generations from the scourge of war’, such that all might ‘live together in peace with one another as good neighbours’. Article 1 of the Charter, which is devoted to the aims of the organisation, highlights the one that is uppermost: the maintenance of international peace and security. This is not mere rhetoric; the world body is organised around this principle. It is manifest in the obligation of states to settle peacefully disputes endangering international security (Article 2.3) and in the renunciation of the use of threats or of force contrary to the aims of the United Nations (Article 2.4), and especially those against the territorial integrity or political independence of states. These rules are the components of a collective security system the essential instrument of which is the Security Council. According to the Charter, peace therefore becomes both the founding objective and the organising principle of the United Nations. The proliferation of peacekeeping missions and the popularity of humanitarian actions led by international organisations or nongovernmental organisations (NGOs) demonstrate the widespread allure of this ideal. This founding myth transcends such values consecrated at the state level as the rule of law, the ‘state of law’ and the respect for human rights, and gives expression to a different perception of needs, emergencies and priorities. A fundamental aspect of myth is its evanescence, its eternal projection of an ideal, a mixture of imagination, hope and sensibility, with an aura of illusion. Indeed, a pacific international society is far from being a reality. First, it is an indisputable fact that the number of contemporary or recent conflicts, of all types, remains high. Second, there is the philosophical and critical operational distinction that must be drawn between just and unjust wars—rather than between war and peace. Finally, this distinction even makes its way into the legal rulebooks, because there do exist hypothetical cases, albeit restricted ones, in which the use of force is not only contemplated as such but deemed to be legal. Thus the Preamble to the Charter can trumpet the objective of ensuring ‘by the acceptance of principles and the institution of methods, that armed force shall not be used, save in the common interest’. One of the justifiable forms of violence is resisting oppression, such as in anti-colonial struggles. This principle can, however, be extended to other forms of rebellion, so that it covers the right of individuals to legitimate selfdefence, as well as that of a collectivity against armed aggression. More broadly, the principle applies to international action against aggression and other infractions of peace, including humanitarian interventions in response to massive and bloody violations of human rights. In short, the recourse to force is more regulated than it is forbidden.

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B. The Restriction of Armed Violence: Disarmament and International Humanitarian Law Methods used to reduce armed violence include preventative measures, such as disarmament, and restrictive measures, such as the obligations imposed by human rights. The disarmament efforts of recent decades has been aimed at the elimination—or at least the control—of armaments, the accumulation of which (especially such weapons of mass destruction as nuclear arms) is perceived as a major cause of war. Disarmament tends mainly to be a discourse of pacifists and of various NGOs, mostly Anglo-Saxon or from northern Europe; it was also echoed by the USSR. Disarmament as an undertaking consists in a group of treaties and legal regimes, which give it structure. This undertaking is characterised by at least three parallel dynamics, one illusory, the other perverse and the third positive. The illusory dynamic is that of general and total disarmament. It is based on the idea that if we can get rid of arms, we will eliminate war. This concept is of course faulty: the existence of weapons is as much the result as the cause of insecurity, and conflicts will always find instruments of expression, no matter how homemade or rudimentary. A number of recent massacres in Africa have been the work of small arms, and even agricultural instruments. Furthermore, it is impossible to unmake existing arms, and states will not renounce their right to defend themselves with the methods they possess. The perverse dynamic consists in the idea that disarmament may constitute simply a pause in or even a technique to manage an arms race. It might, for instance, permit the elimination of obsolete or useless weapons, as well as the demilitarisation or denuclearisation of regions lacking in strategic importance, while at the same time fostering (or at least coinciding with) research and development efforts concentrated upon obtaining more powerful or efficient arms. The positive dynamic manifests itself in partial and verifiable treaties between states. Various such treaties have been signed, especially since the 1960s, at both multilateral and regional levels, as well as within the bilateral US–Soviet context. Arms control policy has even become a method of managing strategic relations between nuclear powers, notably the United States and the USSR/Russia. Recourse to such preventive measures presupposes a certain level of trust between partners. Should this be lacking, the policy is more likely to tilt towards coercive disarmament and anti-proliferation measures. However, disarmament cannot be the sole security system ensuring peace because it cannot address all of the security needs and constraints of states. Therefore peace, as a value and an objective, remains in effect ‘armed’. Disarmament appears in this context as an aid to or even a component of

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other security systems; that is, it serves as an instrument of stability or of control. For all that, the recent disarmament thrust did arise out of a particularly heated arms race that it was only partially able to control. Finally, it may be necessary to resort to force in order to achieve disarmament, as was said to be the case with Iraq in 2003. Disarmament thus comes in different forms, and its priorities vary according to the security system to which it happens to be attached. International humanitarian law works to limit the use of arms in conflicts, to stop destruction, death and suffering, and to protect both combatants and civilians. It is based both on the Hague law (the jus in bello arising from the Peace Conferences of 1899 and 1907) and on that of Geneva (the four 1949 Conventions, as completed by the two 1977 Protocols), without prejudice to various specific conventions. This law imposes a series of legal constraints that embody moral exigencies placed upon the parties to armed conflict. The limits of these constraints are, however, significant. First, their legal status and, notably, their universal application by custom are contested. Second, their content, often abstract, is sometimes trumped by military exigencies. Finally, the declaration that humanitarian rights have been violated and the reactions pursuant to such violation raise delicate questions. For these reasons, international humanitarian law is known above all because of the horrendous violations of it that have occurred. These result in fleeting public indignation, a more lasting effort on the part of specialised NGOs, and now the prospect of a real penalty of international repression. But these measures seek only to reduce the brutality or lessen the frequency of the violence; they are in no way comparable to security systems that aim to organise and keep the peace.

II. Security as System The concept of security can be construed narrowly or broadly. However, even the strictest sense of the military notion of security evokes a number of concurrent or competing systems that not only contradict each other but contain internal contradictions. Furthermore, these systems are not well adapted to the needs and capabilities of international society and its component states.

A. The Notion of Security We must first distinguish between the psychological dimension of security as perception and the systemic (or mechanistic) dimension, by which is implied the totality of procedures and instruments aimed at founding a state of stable, peaceful, orderly and foreseeable relations. Security as perception assumes that apprehended threats or risks can and will be adequately met,

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so that, for example, a state will not feel itself threatened by the ambitions or projects of its neighbours and will come to regard its communication and supply needs as satisfied and its borders rendered safe from aggression. As a system, security would thus mean a construction that is able to adequately respond to these perceptions. A distinction between threat and risk must also be drawn. The notion of threat assumes a hostile intention from an identifiable source that has certain motives, aims, a degree of intensity and an object. The notion of risk is more diffuse: it arises from instability, the absence of control, the unforeseeable nature of external events, and does not have to betray any necessary link with hostile intentions. Thus, nuclear weapons create a deterrent threat (infra), but in the hands of terrorist groups (to say nothing of dilapidated civilian reactors), nuclear materials can and do pose a less defined risk. The recent move away from East–West confrontation toward a more fluid but less ‘managed’ status quo is an example of the substitution of what had hitherto featured an identified threat by a diffuse risk. These examples raise the problem of the extension of the concept of security. It can be extended to cover a number of non-military elements, such as poverty, underemployment, food shortages, lack of public health care, environmental degradation, absence of human-rights guarantees or political instability; as a result, we see the appearance of a multitude of risks for and threats to domestic and foreign peace and security, whether directly or indirectly. The availability of adequate responses presupposes, in the jargon of the UN Educational, Scientific and Cultural Organization (UNESCO), the existence of a ‘culture of peace’. The concept of ‘human security’, centred upon the individual, has in recent years been promoted by NGOs and many states (often at NGO prompting) and is recognised by Article 55 of the UN Charter: With a view to the creation of conditions of stability and well-being which are necessary for peaceful and friendly relations among nations based on respect for the principle of equal rights and self-determination of peoples, the United Nations shall promote: a) higher standards of living, full employment, and conditions of economic and social progress and development; b) solutions of international economic, social, health, and related problems; and international cultural and educational cooperation; and c) universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.

These provisions do not, however, impose precise obligations on Members but rather state desirable objectives, realisation of which can be achieved only through the actions of specialised institutions or by treaties between the states, as is the case with human rights law. The institution of an Economic Security Council, whose powers would transcend the rather limited role of the actual economic and social Council of the UN, has sometimes been suggested. Although the Charter would permit the broadening of the content of

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international security, in practice the concept has been given a narrower construction, limited to questions of a military nature directly endangering peace. Security systems respond to the traditional, restricted understanding of the term, namely that of averting the risk of war or of putting an end to conflicts as quickly as possible. They attempt to provide a rational response to violence the cause of which may be irrational. Their very existence is aimed at prevention; called into action, they play a corrective role. They can be viewed from a global standpoint, since in an organised system, the security of one state is caught up with that of all. This is the approach of the UN Charter. Chapter VI, which provides for the peaceful settling of differences between states, is concerned with preventive measures. Chapter VII provides for international action in the event of a threat to peace, a violation of peace or an act of aggression. Security systems may nonetheless be based on an individualised approach, whereby a state organises its own system independent of those of others. This distinction is part of the plurality— even the contradiction—of systems.

B. The Plurality of Systems This plurality is a consequence of the historical and material diversity of security systems and of the dual role (prevention and correction) assigned to them. Historically speaking, a number of systems have been planned and employed, at least in part. Neither imagination nor effort has been lacking: the partial anarchy and continuing violence of the international system cannot be ascribed to the negligence of its members. Indeed, the recurring themes of the super- (or universal) state, the balance-of-power principle, collective security and nuclear deterrence all point to the possibility that a surfeit, not a dearth, of projects might be the cause of the disorder. Some of the systems currently being tried are in fact very old and subsequently, outdated: empire, hegemony and federalism are avatars of the grouping or agglomeration of states, whether by domination or consent; and equilibrium, a fundamental and recurring system, remains a major reference, notwithstanding its imperfections. Other systems, such as collective security or nuclear deterrence, are of more recent vintage and belong to the twentieth century. Some of these systems are partial, appertaining only to particular situations, while others, taking into consideration general international security, are global. Some are founded on principles of international legitimacy—ie, the assumption that in a legitimate system, no state has a claim against another. The principle of nationalities and the right of a people to rule itself are the consequences of the will of a group to live together in its own space. Because such systems exceed the narrow definition of a security system, they will be considered only insofar as they interact with the latter, via the balance of power or deliberations regarding ‘natural’ boundaries.

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A security system must simultaneously fulfil three functions: deterrence, prevention and correction. The very existence of a functioning system will dissuade participants from having recourse to armed force. Because the war option is doomed to fail, it is discarded as irrational. Thus, according to the logic of the balance of power, when adversarial camps are equal in power, it is irrational to go to war. The preventive or pacific function relies primarily on diplomacy, but it can employ some coercive measures, so long as there is no use of armed force. In the event that, notwithstanding deterrence or prevention, or both, peace in fact becomes violated, collective security must be invoked to correct the system’s failure. This corrective or coercive role presumes that armed force can be used against those who have defied or left a given system. In a balance-of-power system, wars are fought so as to re-establish a disrupted equilibrium. In a collective security system, coercive wars can entail the use of armed force. Security systems thus contain the following ambiguity, if not contradiction: they all maintain, as an ultimate tool of last resort, the possibility of recourse to armed force, with the result that security so achieved can be the opposite of peace, as armed conflict remains as the ultima ratio of security. Seen in this light, security systems, pushed to the limit of their logic, are fated to develop into justifications for war.

C. Contradictions of the Systems These contradictions, whether internal or external, result in a weakening of the system with respect to the challenges it faces. The very labels carried by these individual systems reveal the nature of the contradictions between them. The theme of empire and more generally of agglomeration therefore suggests the antithesis of balance, which supposes dissociation and breakup (or at least takes note of them). Balance of power applies to independent collectivities that intend to so remain. Collective security, a global system, likewise contrasts with nuclear deterrence, a system that presumes the primacy of individual security. Competition between different statesecurity systems leads to an increase in rivalries and can even generate conflict. It is in fact a characteristic of the classic situation that the antagonistic systems can lead to the waging of war in the name of peace. Thus, contradictions between the differing systems, in spite of the aims and proclaimed intentions of each, impede the implementation of a general security system and accentuate the risk of conflict. Even more serious, a number of systems have internal contradictions. When such a system is fully implemented, its internal logic leads to the use of force. This is the case, for example, with some forms of agglomeration, of equilibrium and even of collective security. War is thus reintroduced and in a way justified by the very mechanisms aimed at excluding it. It is of course possible to argue that this is only an apparent contradiction because

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even in the most pacific societies, maintaining domestic peace and public order necessarily presupposes the possibility of coercion. In other words, as a consequence of the three different functions of the system, we have an illustration of the old adage ‘si vis pacem, para bellum’. The result is that theories of peace risk becoming instruments to legitimatise war. Because the systems are based on abstract concepts or represent only partial viewpoints, they may be unable to respond to concrete problems as they arise. They are aimed at obsolete forms of violence or at treating the symptoms rather than the causes of violence. UN peacekeeping operations are an example of this problem: the panacea of international security, they constitute ad hoc and incomplete responses to profound problems. One might well ask, more generally, if preconceived systems do not in fact always tend to structure and keep the peace of a bygone era and therefore always work against the potential viable future peace. If so, their framework cannot be used effectively to combat new forms of violence and the elements of new conflicts. Neither the European Community nor the Organization for Security and Co-operation in Europe (OSCE), for example, was able to prevent or effectively to deal with the conflict that arose in the former Yugoslavia. The fact that the United States, in the face of terrorism and of the risk of collusion between terrorist networks and proliferating states, has invoked the doctrine of the right to ‘preventive war’ reveals the failure of the current security systems. What is fundamentally at issue is the relationship between the political and the military spheres. It is the job of politics to analyse, predict, anticipate and project. Bureaucratic or military mechanisms can only respond in a stereotypical and somewhat robotic manner to unforeseen situations: their inadequacy results from their mechanical nature. That said, it nevertheless remains that we should be wary of the tendency to jettison proven techniques as passé, in the name of questionable intellectual revolutions or of alleged basic changes in requirements. International society’s fundamental deficit of power and its limited ability to carry out voluntary actions should always be borne in mind. These constraints mean that often only imperfect solutions are possible, tinkering as it were on a permanent construction site, in the race between security systems and new forms of violence seeking to overwhelm them.

D. A General Overview of Some Classic Security Systems These systems are ‘classic’ because they are both old and still in use. Although more modern systems try to take the torch, these classics can still be found not only in the background but sometimes at the forefront. Once again, the most important among them must be seen as models, intellectual constructs shaped by their objectives. Their concrete realisations can only be partial or approximate. That their success has varied greatly in the past

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is a function of the lack of agreement over their legitimacy or efficiency as well as their own imperfections or contradictions. First, classic systems are those based on the principle of agglomeration, which inspires different formations; second, they are reliant on a global balance of power; and, finally, they are founded on the doctrine of natural or secure boundaries. At first glance the purposes of these systems seem dissimilar. The grouping together of states raises the prospect of a reform or even revolutionary process, because it implies the transformation of interstate relations. The balance-of-power system, by contrast, is aimed at peacefully maintaining the status quo. Nevertheless, the two systems do partake of a global vision of international security—or at the least a vision that is greater than the sum of that of one or more of the component states. The natural, or secure, boundaries system, on the other hand, is an individualistic approach, concerned only with individual state security at the local level. These divergences in ambition do not, however, constitute the most important differences between these systems of such diverse—if not antagonistic—inspiration.

III. Systems of Agglomeration The term ‘systems of agglomeration’ applies to all systems that tend towards the grouping together or even the fusion of initially independent entities. They suppose (in varying degrees) that the interstate system has been overtaken and that the members will adopt a common approach to the security problems they face. The Universal State remains the ultimate model, the perfect incarnation of this system. However, not all forms of states grouped together fall within this category: certain criteria of intensity and aim must be met, and the interpretation of these can vary. Two principal and opposite forms of this system can be distinguished: the empire, which is based on the principle of domination; and federalism, which is based on the principle of consensual association.

A. Common Elements One inspiration or model has resulted in widely divergent forms that most often are only partial or degraded variants of the system. They do, however, rest on similar bases. i. Models Although it is a lofty ideal and probably mythical, the Universal State, which would abolish the differences and the antagonisms between diverse political collectivities, is the aim of the agglomeration of states. This ideal can be supported by a comparative rationale regarding the internal functioning of the state and its international role.

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At the domestic level, the rise and solidification of the state as sovereign authority in a given territory results in civil peace for the population. The state maintains public order through its monopoly over legal constraints and its consequent limitation upon the resort to violence. The abolition of private wars—feudal, civil or merely the symbolic interdiction of duels— demonstrates the success of the state, leading to expansion as a kind of universal legitimatisation of the model. On the international level, however, the state can appear as a troublemaker, the principal cause of violence and insecurity, and this due to competition and antagonisms between states. Although its power at this level is no longer limitless, the state is still responsible for its own defence and security. This leads to a worst-case scenario: because it must be ready to respond to possible aggression, the mindset of the state is that of insecurity. Merely expecting the worst can lead to provoking it or at least to a deterioration of the actual situation. In addition, failures at the domestic level, such as the inability of a state to fulfil its role of maintaining internal peace, can have repercussions at the international level. In other words, both the functioning and the non-functioning of a state can contribute to international insecurity. The solution to this problem appears simple: a transposition of the state on the international level. The realisation of a super-state, possessed of a universal nature, would both allow the replication of the pacific function of the state and eliminate the risk of war inherent in the coexistence of sovereign states. Only problems of policing the peace would remain, and from international peace would flow complete and general disarmament. It is indeed the only situation under which such disarmament is feasible. The ideal of the Universal State is, however, confronted with two fundamental problems. Firstly, the notion of a state is based upon a circumscribed territory, an autonomous group, and an organised ‘otherness’, founded upon the distinction between ‘us’ and ‘them’, between the domestic and the foreign. The Universal State is a contradiction in terms and fundamentally an anti-state concept, because it leads to the dissolution of the state from above. Its realisation would result in the radical surpassing of the form of the state in favour of some yet-to-be invented political construction. The idea of complete and general disarmament appears equally as an anti-state concept. On a practical level, contemporary international security is affected by a fragmentary political trend, as witnessed by the recent multiplication of the number of states. Since the trend depends upon the idea of legitimate diversities, the ideal of the Universal State must either be anachronistic or premature. The fundamentals of the process of agglomeration, withal, remain relevant.

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ii. Intellectual Bases and Practical Tendencies The intellectual bases of the concept of a Universal State are a mixture of ideology and analysis. The dream of unity, the referent of which is the concept of humanity and its common values, has not disappeared, even though it takes form more often through enunciations of principles rather than through constructions of institutions. The deepening and intensification of international relations has brought with it a substantial rapprochement of collectivities, along with an increasingly evident community of interests. Some broad security problems, such as the environment, development, public health and migration, are international by their very nature. On the narrower ground of military security, the grouping of states is a response to globalisation or to interdependent needs and mechanisms. For this reason, the UN Security Council has been vested with universal competency and has become reliant on the implementation of a general concept of international security. The practical tendencies flow from the logic of power. Every group is the product of an active power that provokes the process of agglomeration for its own benefit. Power is naturally cohesive and tends to rally others around it. These groups possess therefore a spontaneous character, and they rely on objective factors. They are more a function of a natural process than of an ideological one: it feels good to be close to the powerful, and it is risky to oppose them. Individual security—of persons or of groups—thus finds collective solutions. This raises a general question: does the natural—or spontaneous—system of international security rest on a group principle or on individual mechanisms? Is it not striking to see so many states today aspiring to be the best allies of the United States? Does the attraction that the European Union exerts on its periphery manifest a certain automatic tendency to agglomeration? These questions cannot properly be answered without first studying the balance-of-power system, which proposes an alternative solution based on maintaining the disparate states. iii. Variants The many variants of the agglomeration process underscore the vitality and pertinence of this model. However, all are not equally relevant: some forms are so degraded or embryonic that they cannot be usefully included in this category. For example, hegemony, the individual exercise of power for one’s primary or exclusive benefit, only results in a virtual grouping of states that lack the institutional mechanisms necessary to be considered a system of agglomeration. It can even be seen as the substitute rather than the realisation of a grouping. The same can be said of those limited ad hoc coalitions promoted by the administration of George W Bush, whose byword was ‘the mission defines the coalition, not the other way around.’

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The ruling logic is that of bands rather than of institutionalised alliances governed by stable rules. Even alliance, a widespread security technique that globalises in part the security problems of its members, is ambiguous. It is in fact a kind of crossroads technique, meaning that it can be employed in the context of a balance-of-power system but can also serve as the embryo of one of collective security. Similarly regionalism, to the extent that there are no security institutions as such but only shared norms, is too diffuse in inspiration and incomplete in practice to constitute an autonomous category. The same can be said of new states formed by fusion, ie, the partial regrouping of independent entities into a new state, such as happened in Italy in 1860 or in Germany in 1871 and again in 1990. From a security standpoint, this model pacifies the state internally and protects it externally, but it does not provide any global solutions. On the contrary, it leaves open the problem of a potential projection of power that could increase instead of decrease instability and insecurity. There remain two major approaches that differ in many respects: the various imperial forms, based on domination, and those of federation, based on association. They are similar though, in that they can contain common institutions and aspire to be permanent. Their homogenous frameworks make them organised entities that embody the concept of agglomeration.

B. Empire, or Domination At first glance this formula seems archaic, definitively rejected by history. The technique of mastery and territorial expansion runs contrary to the general tendency towards the fragmentation of states, as well as to the principle of the right to self-determination of peoples. In addition, other less costly and hazardous techniques such as hegemony, which works invisibly and from a distance, can be used as an effective replacement. Nonetheless, because of its historical role and heritage, empire remains of considerable importance. Nothing in fact precludes this formula from recurring in new guise. Sometime the ‘call to empire’ is raised in regions marked by insolvency and artificial states, betraying a yearning for a dominating power that can bring peace. Historically, forms of empire have been very diverse and have proved capable of adapting to very different situations. However, from the viewpoint of peace and security, the regimes were marked by imperfections and contradictions that doomed them to decline and disappearance. i. Forms The Roman Empire, the memory of which has endured for millennia, is the perennial reference, the ideal and mythical model. It is supposed to have assured global peace for its subject peoples, the Pax Romana, for several

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centuries. It has inspired such diverse undertakings as the Holy Roman Empire (Charlemagne’s attempt to restore the Western Empire) and the Russian Empire, the supposed inheritor of the Eastern Roman Empire and a regional rival to the Ottoman Empire. The Eastern Empire in fact outlived the Western as a functioning unit by a thousand years (though the Holy Roman Empire did not expire as a legal artefact until 1806). More recently, the Napoleonic Empire emulated the Roman techniques of absorbing territories and creating vassal neighbour states. Although the legal techniques varied, the principle of legitimisation by pacification has been common to all forms of empire. On the other hand, all were characterised by despotism and by the subjection of peoples. Napoleon I, for example, replaced the status of citizen with that of subject. The Ottoman Empire is caricatured as a dreary and stupid despotism, which plunged its dominated peoples into an inertia lasting centuries. Added to a Marxist analysis of ‘oriental despotism’ is Montesquieu’s account, namely of an empire whose very vastness necessitates a centralised—and energised—despotism. Contemporary history furnishes examples of colonial empires, including the Soviet Union, with its domination of peripheral states. It was often stressed that one of the functions of these empires (disproved by their disappearance) was that of assuring the peace within the controlled territories: rivalries and traditional conflicts between groups are supposedly reduced and frozen by imperial domination. It is true that colonial Africa and Asia were sheltered from the convulsions that marked the decolonisation process, and the Soviet Union’s domination of Eastern Europe stopped for a time the periodic resurgence of confrontation between nationalities in Central and Eastern Europe. Nonetheless, aside from ideological or moral considerations, the various formulas of empire gave way to and suffered from multiple contradictions. Far from being instruments of peace and security, empires turned out to be intimately linked with domestic and international violence. ii. Contradictions The contradictions of empire do not necessarily result from subjects finding the domination unbearable. Indeed, as Hobbes suggested, they might well prefer domination to insecurity, a thought more melancholically expressed in Rousseau’s comment about servitude so debasing man that he comes to love it. Rather than domination per se, it is weakness in attempting to dominate that is the nub of the contradiction. Imperial domination can never be triumphant, at least in the long run. No empire, not even that of the Romans, has ever been able to become global. Empires have either confronted a competing empire (viz, the Austrian, Ottoman, and Russian ones), or they have been sapped by insecurity at their borders, as a result

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of their very immensity (the Roman Empire and more recent European colonial empires). The cohesive power that brings them together has always faded, dooming empires to an often convulsive and violent end. Furthermore, violence characterises both the birth and the expansion of empire. Because they aim not at limited advantages through compromises with recognised partners but rather at the complete absorption or even disappearance of the collectivities confronted, their wars for expansion are wars of conquest without mercy. The contradiction between the end (empire as peace, according to Napoleon III’s formulation) and the warlike means used to achieve it is insurmountable. The survival of the empire is based on the necessity of permanent constraint, of pressure that cannot be lessened and that must from time to time take the form of brutal coercion, as in the quashing of rebellions. Empire, to paraphrase Michel Serres, becomes just another word by which we express the impossibility of integrating the many. The peace imposed may be prolonged but is never stable; fundamentally, a stable peace can only be the product of consenting parties. Certain empires seek to obtain this consent and to legitimise themselves through a form of federalism, which permits a degree of autonomy to collectivities that are recognised to be authentic. Such was the formula followed by the Soviet empire. On Saint Helen’s Island, Napoleon claimed that his ultimate aim was to realise a European Federation. In reality, however, most federations are coercive: hiding their element of domination, they accompany and even aid in the break-up of empires, as shown by the transformation of the USSR into the Commonwealth of Independent States or, in the case of the French colonial empire, the successive stages of the French Union (1946) and the ephemeral Community (1958). In contrast to these forms of coercive or decomposing federalism, constructive or associative federalism seeks to group together independent entities in a peaceful and progressive manner.

C. Federalism, or Association The spirit of federalism arises out of a desire for harmony in diversity and seeks to reconcile unity and difference, security and freedom. The liberal, even democratic, ideology that nourishes it implies that the process leading up to a federal system will be peaceful because it is voluntary, founded on the consent of the entities coming together. While the founding of the United States of America is an illustration of these aims and methods, the American Civil War underscores the limits of the principle of even voluntary participation. But how does this work at the international level? How can we expect states to renounce their sovereign competencies? Is it possible that their populations, peace-loving and desirous of uniting, will push governments

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down this path? The following dilemma presents itself: either the process is accelerated by a domination that is disguised, or the process is slow, hazardous and territorially limited, since it presupposes a profound similarity of culture and political principles. In other words, there can be no federalism without a federator, and no federator without domination. Although the idea of federalism remains bright, its realisations stand in stark contrast, as illustrated by the failure of the USSR, the limits of intergovernmental organisations and the ambiguities of the contemporary European communitarian structure. i. The Failure of the USSR The now defunct state of the USSR was characterised by a dual nature, revealed at both the domestic and international levels. It permitted certain of its republics to have an international character—Ukraine and Belarus were members of the United Nations, along with the USSR. In addition, having no precise geographical determination, it sought to expand, constituting the embryo of a global state to be formed by the adding on of new soviet republics. It aimed to reconcile the respect of nationalities with the unity of a humanity proclaimed to be on the path to freedom. In practice, however, it was based on the political and ideological domination of the Communist Party of the USSR, itself organised around the principle of democratic centralism. The break-up of the USSR not only proved the failure of its international vocation but also revealed the hypocrisy of its claim to unite free peoples. ii. The Limits of Intergovernmental Organisations Intergovernmental organisations are closer to a confederate model, being made up of sovereign states. They have only those competencies granted by the Member States unanimously; any other action of the whole can be taken only on a voluntary basis, with the permission of the parts. The United Nations, more specifically the Security Council, is a special case. Its mandate is the maintenance or the reestablishment of international peace; its powers of decision affect all (despite its limited and unrepresentative makeup); and it can theoretically use armed force against states. At the heart of an intergovernmental organisation, it is thus an embryonic version of federalism. The extent of its virtual power underscores the primordial nature of the issues of peace and security in the global order. However, the Security Council is animated not by the logic of federalism but rather by a particular system of peacekeeping, that of collective security. Security problems are isolated, envisaged in a segmented fashion, rather than seized upon as a by-product of a broader federalist system. Collective security therefore warrants analysis as a separate and autonomous security system.

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iii. The Ambiguities of the European Community Structure The initial inspiration for the European Community was without doubt the desire to entrench peace in Europe by precluding any renewed conflict between France and Germany and by creating a pole of stability and prosperity in the face of Soviet pressure. It is also clear that Jean Monnet hoped to establish a federal system. However, from the standpoint of an international federation qua peacekeeping system, the communitarian structure contains several ambiguities or deviations. First, federation is more virtual than real, implemented only in part by the techniques of Community law. The loyalty of the peoples involved remains questionable, and the enlargement of membership dims the perspective of tighter federalism. In this context, security concerns remain diffuse and most often are addressed only indirectly. The 1954 failure of the European Defence Community revealed the extent of the existing divergences, which were only partially dealt with. Each Member State retains its defence policy. The United Kingdom and France adhere to their nuclear deterrents, an autonomous system of security if ever there was one. The issues of foreign policy and common security, as well as that of a common European defence, remain on the agenda, very much so under the rubric of European Security and Defence Policy (ESDP). The EU relationship with the North Atlantic Treaty Organization (NATO) and its links with the UN mechanisms of collective security remain nothing if not unclear. The effects of the Community structure with regards to pacification are more evident internally than externally, where it can be said only to contribute in general to the stabilisation of the European continent. Finally, the European Union can aspire only to a regional vocation and must therefore be part of a larger international security system. Nothing prevents such a larger system from being one of balance-of-power.

IV. Balance-of-Power Systems Whereas theories of agglomeration rest upon visions of a new international society (whether attained through reform or through revolution), the theory of the balance of power is a modest, realist and empirical doctrine, based upon apparently simple variables. At first glance, this theory appears to be the starting point of all security systems, in the sense that one refers to it for lack of anything better. Moreover the theory makes up the foundations for other theoretically more elaborate systems. The balance-of-power doctrine enjoys a long history of practice and is given added credence by the observation that most reasonably stable periods of international peace have coincided with periods of relatively balanced power among international actors. In fact, however, the balance of power is an arrangement of great complexity, and its maintenance requires a great deal of lucid analysis and

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subtle behaviour on the part of actors hoping to preserve it. It is for that reason that we sometimes speak of the ‘golden age’ of diplomacy, in reference to a period in which a stable balance was achieved. More importantly, the balance of power runs up against certain immutable contradictions—a fact that does not, however, prevent it from representing an unsurpassable ideal for security in a state-based international system.

A. Elements The definition of the balance of power allows us to draw out the theory’s links with the maintenance of peace and its connection with power relations more generally. i. Definition The balance of power, in an interstate context, rests upon four elements. The first is the existence of a plurality of political entities, sovereign states, each of which has the right to security and the related right to ensure that security by its own means. The second element is the acceptance of this diversity as legitimate and insurmountable—or perhaps legitimate precisely because it is insurmountable. Third, these independent entities are engaged in natural competition with each other, in a situation characterised by rivalry if not antagonism. Lastly, these mutual antagonisms cannot be stabilised, the contradictions cannot be resolved, unless no state acquires a manifest superiority relative to the others. These elements are largely factual in nature. They imply a stable or harmonious conception of international society: balance-of-power theory does not suggest or dictate any reform of institutional or normative nature. International organisations are not necessary, though they may prove to be useful, since there is no need to mitigate the diversity of states. It is not even necessary to limit the legal recourse to violence, since peace and security do not depend upon legal mechanisms—indeed since there are no such mechanisms, external and superior to states, demanding to be respected. The instruments used to maintain stability are therefore limited. Balance-ofpower theory strives to bring about a solution to the natural divergences between states that is both elegant and realist, determined by an economy of means. The problem that presents itself of course is inequality among states. While all are legally equal, in fact some are great powers, some small powers. How can the balance be maintained between them? It is important not to confuse balance with equality. Inequality is perfectly admissible in a balance; it need not be eliminated. It can, however, be compensated for through various techniques. An alliance, for example, allows a number of states to globalise their security problems and affords particularly to small

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states the benefits that come from association with more powerful ones. NATO, for instance, has filled this bill. Neutrality is another technique: a state can renounce war in exchange for security guarantees made by its neighbours. Similarly, strategic demilitarisation also aims to withdraw certain areas from military competition. The continent of Antarctica is a modern example of this. These techniques can be used successively by states. Belgium and Luxemburg, for example, were first neutral prior to becoming NATO members. Sometimes the very creation of small states is a result of finetuning in the balance of power, and such states may be called into existence and neutralised as a buffer zone between rival powers—as with Belgium and Luxemburg in the nineteenth century. ii. The Connection with Maintenance of the Peace The search for balance rests on an analysis of the origins of conflict. This analysis is rudimentary, founded more on experience than on any elaborate theoretical approach. It argues that war is always the result of imbalance between states, and that either side of this imbalance (the more powerful side or the weaker side) can be the source of war. A more powerful state may consider an attack upon a weak neighbour acceptable and might imagine that it can easily extract gain (as Iraq believed with respect to Kuwait in 1990). Conversely, a state finding itself in a disadvantageous situation may be tempted to develop a militarist policy to compensate for its weakness— and we know that weakness often leads to aggressiveness (as study of North and South Korea reveals). The case of Germany offers illustrative examples of both the sides of the coin. Long divided into a plethora of small states, Germany served as the battlefield for other European powers. Unified, it suddenly became a threat for its neighbours. Excessive weakness and excessive strength alike led to tragic consequences. Between the first and the second conditions, Prussia—the agent of unification—developed a policy of military conquest that brought it into various conflicts. The case of Italy is also revealing, if to a lesser degree. The remedy then is simple and has been confirmed through experience: there must be a stable balance that can guarantee the security of each member of the system. If the balance is correct, no state will rationally run the risk of a war in which there are no probable, let alone assured, gains to be had. iii. Equilibrium and Power Relations The doctrine of the balance of power arises from an analysis of interstate relations centred upon power—or, more precisely, on a deficit of power. In a situation where there is no single organising power able to impose itself upon and unify international society, the balance of power looms as the ‘least bad’ solution.

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At the same time, this conception of power is in a way mechanical. It evokes a Newtonian logic of universal gravitation bringing harmony to opposing forces. The logic would therefore suggest that any modification of the status quo to the benefit of one actor must be accompanied by compensation for the benefit of the other actors if the balance is to be maintained. Hence we note that the partitions of Poland in the eighteenth century involved a careful division of the spoils between Austria, Prussia and Russia; and the decline of the Ottoman Empire led to a search for acquisitions that could satisfy the main European powers. A political transposition of the international theory of the balance of power to the domestic level can be seen in the concept of ‘checks and balances’ so dear to British (and American) institutions. Indeed, to a certain extent, balance-of-power theory is an international projection of this domestic concept. It is hardly surprising that the United Kingdom became its champion, or that the theory enjoyed supremacy in the eighteenth and nineteenth centuries, during the scientific and philosophical heyday of Newtonian principles. The balance of power thus assumes movement, with the system setting the pace and establishing the constraints. As such, it combines stability and mobility. It is therefore nothing more than the sum of partial imbalances, as the difference between balance and equality reveals. Properly speaking there are only false equilibriums, which the movement regulates and for which it compensates at the same time—this, at least, in a doctrinal approach that conceives of balance more as it should be than as it really is. For balance neither establishes itself nor maintains itself spontaneously: indeed it presupposes a concrete action undertaken by actors in the system. As a result, it is more an option than a given and demands very careful management.

B. Management Management of the balance-of-power system requires highly civilised relations between partners who have agreed upon common rules of the game. This system is therefore better suited to homogeneous international environments, or at least it bespeaks a strict separation between domestic regimes and the rules of the international game. In both cases, a strong emphasis is placed on the role of diplomacy. The system’s management must also operate at different levels or be found in different frameworks. The diplomacy in question is one of interests, not of values. It rests upon a sober and objective analysis of power relations. In this system a state has no friends: its relations are reversible and rather precarious. Ideological sympathy, cultural proximity and historic ties carry little weight against the more mechanical considerations of power. In order to prevent domination by a partner, a state must be able to turn against it so as to give support to the weaker side. The attitude of the United Kingdom between the two world wars, objectively favourable to Germany over the interests of France, serves

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as illustration of this principle. Another example can be discerned in the effort by republican France to conclude an alliance with absolutist Russia before 1914 in order to balance Germany. Similarly, no reference is made in this system to international principles of ideological nature. There is no need for any particular international legitimacy to be acquired. The balanceof-power system may also lead to the ignoring, if not the active repression, of nationalist movements. Such movements, coupled with the opposition brought to bear against them, played a disruptive role in nineteenth-century Europe, leading ultimately to the destruction of the balance-of-power system on the continent. One can certainly also distinguish between two interpretations of equilibrium, as expressed in the opposition between balance of power on the one hand and political equilibrium on the other. The balance of power is a formula of mechanical or material nature that places its emphasis on the competitive aspect of interstate relations, in which each state seeks to position itself as the arbiter of balance, with equal emphasis on the political and military levels. This interpretation corresponds to a more objective—one might say more cynical—view of the system. Political equilibrium has a broader connotation, incorporating the subjective perceptions of partner states, and suggests an effort to reach an accommodation between states, taking into account a great number of variables. The emphasis here is placed on the political level, in the search for a general agreement aiming to satisfy, at a minimum, the principal actors by associating them in a system of common management. Political equilibrium can therefore incorporate ideological principles or values that certain actors might hold dear. Taking another approach, one could say that the balance of power is the objective to which each state is committed in order to achieve security, while political equilibrium refers to the ensemble of methods that would permit the reaching of consensus among all actors in order for that objective to be attained. The nineteenth-century ‘Concert of Europe’ illustrates this. To put it differently again, balance of power is considered from a unilateral perspective, while political equilibrium is considered from a collective point of view. This distinction highlights the limits of the balance’s objective character and draws attention to the importance of different perceptions, particularly with respect to the understanding of relevant geopolitical frameworks. The geopolitical frameworks within which balance must be weighed are in fact multiple and variable. A security framework might, for instance, be understood as a function of the capacity for military force projection by states. Such an understanding could lead to the drawing of a number of spheres that might in general terms delimit regional power complexes, with only a few states being able to project force globally. The capacity for force projection does not, however, cover all types of operations. In addition to such measures of ‘active security’, the impact of local conflicts—which can spill over from their original geographical area—must be taken into account.

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Thus a conflict between Israel and Egypt transcends the region and becomes an issue of global concern, since it implicates a number of actors external to the region. Moreover, more diffuse political considerations must be added to objective military factors, further blurring the boundaries of the circles. This technique, if not one of spreading peace, certainly is one of containment of conflict to a narrow space, preventing any disruption of the overall balance. Or, as Henry Kissinger once put it, if the Middle Eastern conflict cannot be resolved, it must at least be transformed into, first, a regional matter and, ultimately, a quarrel between neighbours. Everything thus becomes a matter of scale. In this respect, the management of the balance of power raises various problems. First, as the case of Israel in the preceding example illustrates, a small power on the global scale may still be a regional giant. If regional concerns are of interest to global society as a whole, these concerns amplify the role of states in the region in question, since such states can exploit global security concerns as leverage. One must put the genie back into the bottle, so to speak. Conversely, there are also regional situations in which no balance is possible due to the overwhelming dominance of a single state. It is difficult to conceive of a power to balance China in Asia, or the United States in the Americas. One can only conceive of balance on the global level, through gradual adjustments imposed by external powers. Finally, it is no simple matter to define relevant geopolitical frameworks, the borders of which are moreover defined by subjective perception. Ought the Balkans to be considered as Southern Europe or as a crossroads where Northern, Central and Eastern Europe meets the Mediterranean and Asian world? Does the Middle East extend from the Atlantic to the Persian Gulf, or is it limited to the Levant? And what place does Turkey occupy in either of these frameworks? Generally speaking, the more numerous the actors, the more likely a balance. At the same time, however, the balance becomes more complex as the number of actors grows. Thus the European Union of 27 members is more internally balanced than the original European Communities, consisting of only six members and based upon agglomeration. If one is to reason in terms of balancing, one must be able to conceive of it in a manner coherent with a variety of scales and plans. It is clear that managing such a balance can be very acrobatic, for as formulated so suggestively by Jean Cocteau, balancing conjures up a sleepwalker making his way along the rooftops; it is a sum of imbalances that yields a false balance. This is one aspect of the more serious contradictions afflicting this system.

C. Contradictions There are three major contradictions within the balance-of-power system. Firstly, for a doctrine focused on the attainment of stability, it is remarkable

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for its near-permanent instability. Secondly, for a doctrine aiming at security and peace, it often relies upon recourse to war. Thirdly, while aspiring to avoid domination by one power, it often leads to hegemony. Let us take these in turn. i. Instability Instability is a function of the dynamic nature of power and of its distribution. Power changes: it grows, it declines and its components alter themselves due to circumstances both unpredictable and inevitable. A highly populated state becomes depopulated. A state once considered lacking resources suddenly finds itself in possession of raw materials now considered strategic. Where ideology was once irrelevant, the rise of revolutionaries suddenly places it at the heart of security concerns. A stable balance is founded upon the principle of inertia: it is objectively conservative. But one can never be able to arrest or control the development of society over the long haul. Effective management assumes that one can understand all such evolutionary factors and anticipate their relative importance, since an absence of management will lead to the self-destruction of the balance. But such management is precarious and risky. Thus the United Kingdom, arbiter of the European balance in the nineteenth century, understood only too late the impact of the rise of Germany and the weakening of France—due to historical tropism. One explanation for this is that the United Kingdom had by the latter half of that century abandoned political equilibrium, which features the collective management of future territorial changes, for the balance of power. Guided by the latter conception, Britain intervened only too late—the changes in balance having already been completed—and unilaterally, without much consideration for the other powers in the system. This policy of ‘splendid isolation’, corresponding as it did with a drift from equilibrium towards hegemony, cost the United Kingdom dearly: the price was two World Wars. Not only was the system of balance of power in Europe definitively destroyed in these wars, the United Kingdom found itself shorn of great power status in the post-war order. ii. War as a Method of Balancing Herein lies a heavy contradiction, since the system ostensibly designed to maintain peace and security becomes a justification for warfare in response to circumstances of insecurity. One can distinguish between two types of conflict: that which is ‘internal’ to the system and regulates it; and that which results from antagonism with another security system and calls the principle of balance itself into question. In the case of the first type of conflict, the recourse to force can in effect become the most expedient means of weakening a rising or dominant

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power. Such conflicts lead to limited wars: the Crimean War of 1855, a French and British effort to halt Russian expansion towards the Mediterranean, is one example. Such a conflict can also be tolerated or supported by a power that does not become directly involved in it, as was the case for the United States with respect to the Iran–Iraq War and the conflict in Afghanistan following the Soviet invasion, both in the 1980s. In the event of major war or protracted periods of conflict, it is the second type of conflict that occurs. These wars generally involve the direct struggle against an open attempt at dominion by one state. A protracted period of warfare—a new Hundred Years’ War—occurred between the War of the Spanish Succession (1700–14) and the end of the Napoleonic Wars a century later. The United Kingdom emerged victorious from this period, having proved able to fight Napoleon with a remarkable economy of means. It managed to contain Napoleon to the Continent, which he crisscrossed like a madman before becoming exhausted and defeated. The system, however, was not stabilised by this: new coalitions needed to be created to overcome German aggression in the two world wars. Herein appears the contradiction between two antagonistic security systems—an external contradiction between the maintenance of the balance of power and the temptation to forge an empire. This contradiction, moreover, does not exclude any simultaneous internal contradiction that would see the balance itself drift into hegemony. iii. The Drift towards Hegemony Where balance is established but will not maintain itself automatically, a ‘guardian’ becomes necessary. In other words, the political equilibrium, a collegial entente satisfying the partners acting in concert, has a tendency to degenerate into a balance of power in which each actor plays for himself. In practice, the game does not work unless there is an arbiter who will intervene to re-establish equilibrium. But this very guardian who controls equilibrium is likely to push it in favour of his own hegemony. Hence the United Kingdom exploited the nineteenth-century balance of power in Europe—conceived of as ‘public law of Europe’—in order to profit from the mutual weakening of the continental powers. The Britain was able to develop and solidify its maritime and overseas domination in such a way that the balance of power itself became a mask for universal hegemony. This same process has characterised the various formulations of US policy. As arbiter of all the balances, the United States is driven to universal hegemony. The presence of various national lobbies leads it to internalise these arbitrations.

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D. Change and Permanence We now return to a question asked earlier: does not agglomeration, be it through hegemony or through domination, constitute the natural or spontaneous security system of international society? In practice, it does not, since it rests upon the expansion of a cohesive power that is ultimately doomed to decline. One might more accurately make reference to a circularity of systems, between agglomeration by cohesion and balance by dissolution. These two systems succeed each other and create each other, as shown by the example of the Cold War and détente in the historic context of East–West relations. These abstract models are never stabilised, experiencing instead phases of affirmation and phases of decline. The choice of a security system, the options most conducive to peace, and the behaviour most likely to maintain it do not arise freely as a result of individual preferences but are rather subject to the constraints of the objective distribution of power. And yet one must make the correct choice in any given configuration of power. A state incapable of achieving a profitable agglomeration and fearful of the agglomerative initiatives of another state may employ balance as an alternative. This is another way, subjective or voluntary, of conceptualising the circularity between agglomeration and balance. Balancing becomes a hegemonic technique when a state is not in a position to dominate directly but is in a position to act as arbiter in competitions among its rivals. The dissociation of possible rivals allows the state to exercise a discrete hegemony, at low cost and without exerting direct control. Such a condition bears witness to the presence of two variants—or of a metamorphosis of domination between agglomeration and balance. These variants can moreover be employed simultaneously, depending upon the region or domain in question. Such an option remains available for the United States to employ today. The balance of power, despite all its imperfections and even when it is not the ‘official’ security system to which so many refer, remains a regulating element for other systems. Thus in the framework of nuclear deterrence, the notion of strategic balance—which is not simple equality—is an important concept. For international agreements aiming at disarmament or arms limitation, the security balance that must be maintained between parties to the agreements must be borne in mind. The Treaty on Conventional Forces in Europe of 1990 is an illustration of this.

V. Natural or Secure Borders The doctrine of natural or secure borders is a particular application of geopolitics. The fundamental idea is that a state whose territory is able to satisfy all that state’s needs will not have any demands to make of its neigh-

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bours and can therefore develop exclusively pacific relations with them. This doctrine has a much more limited application potential than the previous ones because it presents itself as a justification of the specific policies of certain states, without taking the interests of other states into account. Despite its obvious contradictions, the doctrine of natural or secure boundaries continues to inspire the demands or attitudes of certain states.

A. Notion The notion of a ‘natural’ boundary can be understood in various different ways, all of which share some commonalities. In its most basic sense, the expression is purely geopolitical and is based upon the requirements for territorial defence. In order to be safe from external attack, a state must be militarily defensible—and must therefore enjoy physical characteristics (for instance a river, a mountain chain or a desert), such that natural obstacles hinder any attempted foreign invasion. The United Kingdom has long benefited from its insularity. By contrast, the northern French border is open to invasions and close to the capital city, a fact that has historically (until the creation of the European Communities) weighed heavily on French diplomacy and defence policies. Many French leaders considered it essential that France reach its ‘natural border’ on the Rhine River—indeed some observers believe that this desire can explain French policy for the past few centuries. The quest for natural boundaries has also been mentioned to justify the Israeli policy of annexing certain territories, notably the Golan Heights. In a broader, historic or cultural sense, a state often claims territory that at a certain time period belonged to the community represented by that state, or that is populated by a people culturally similar or identical to that state’s population. This was, for example, the position of Germany during the 1930s: the principle of the national state predicated the regrouping of all Germans, including those who lived within the borders of Czechoslovakia and Poland, into the German Reich—leading of course to the destruction of the two Slavic states. In another context, certain members of extremist Israeli groups legitimise the creation of a ‘Greater Israel’— which involves the expulsion of the Arab population—on an interpretation of ancient history. Turkey’s occupation of Northern Cyprus was justified in the same spirit. These two understandings of the term ‘natural boundaries’, though quite different, do share certain commonalities. First, those states that claim them do not feel they have attained security until their demands have been satisfied. Second, the claim itself has no grounds whatsoever in international law, because from a legal point of view a boundary is an artificial line drawn between two states by mutual consent and need not take into account any physical or cultural considerations. Third, following both understandings,

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the theory of a natural boundary is practically incompatible with stable international security.

B. Contradictions Following both understandings of the term, the doctrine of natural borders conflicts with other requirements for security. If, for instance, one is to base one’s claim on historic legitimacy, one is bound to enter into conflict with the principle of nationality—witness Kosovo. Serbia invokes a past possession that in no way corresponds to the ethnic reality today. Israel makes a similar claim with respect to a portion of Palestine. This conflict often results in forced population transfers (or ‘ethnic cleansing’), which do little to strengthen security—even if the practice has seen widespread use in Central and Eastern Europe since 1945. If one advocates the principle of defensible borders, one must ignore the principles of nationality and selfdetermination of peoples. Moreover, assuming that a policy of natural boundaries were to be realised, it would scarcely be acceptable to a state’s neighbours, because it does not take those states’ own security requirements into consideration. Thus the annexation of Alsace-Lorraine in 1871 was based more on considerations of military security than of national legitimacy, since the consent of the inhabitants was not sought by Germany. The result was to render any Franco–German reconciliation impossible, on two counts. First, the new frontier represented a permanent threat to France and reinforced its vulnerability. Where Germany saw a security border, France saw a border of insecurity. Second, the frustration resulting from the amputation of a portion of the French nation could only engender bitter resentment and a war for revenge. Bismarck had hoped that France would forget Sedan as it had forgotten Waterloo. But this could have been possible only after a peace without annexation. The same observation applies to Israel and its Arab neighbours. It is evident that no lasting peace can be achieved so long as the Palestinian territories remain occupied, their national rights violated. The logic of wars of victory feeds wars of revenge, as the 1973 Yom Kippur War and the two Intifadas have demonstrated. Since one state’s security frontier is its neighbour’s frontier of insecurity, such a border can only lead to an armed peace, to mutual suspicion and to large showdowns in the future. The demands of individual security thereby violate international security, and by definition, both self-destruct. One might think that such conceptions of and approaches to security might have been surpassed today, thanks to the decreased importance of borders and to the growing permeability of states to international exchanges. It should be noted, however, that with the return of territorial instability—even in Europe—this type of thinking is returning to the fore.

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14 Collective Security*

C

OLLECTIVE SECURITY IS one of several types of international security systems, such as balance of power or nuclear deterrence. As with all security systems, it is dominated by political considerations. On first analysis, it rests on the idea of there being a level of indivisibility and solidarity to the peace between states. All must feel implicated in each other’s security problems, since international peace and state security are intimately linked. This implies a mechanism of international guarantees based on a common interest, in order to maintain and if necessary to re-establish peace amongst states. This longstanding concept had a particular impact on the course of the twentieth century in relation to organisations with a universal vocation, such as the League of Nations and the United Nations, for whom international security was a founding principle and a continuing preoccupation. However, once one tries to build a system of collective security based on norms, institutions and concrete mechanisms, difficulties begin. Quickly external limitations become apparent: such a system concerns itself only with interstate security—in other words, peace and international security—which means that it ignores multiple forms of violence that only indirectly affect international relations, though they are potentially destabilising. Such a system becomes dominated by the military aspects of security, ie, the protection of states against armed attack, leading it to neglect the deeper origins of conflicts and to underestimate the preventive dimensions that the preservation of peace implies. These are external limits, presuppositions that ultimately limit the validity and efficiency of such a system. Moreover, collective security in itself and as an organised system raises numerous problems regarding definition and structuring. The UN Charter, which is an implicit reference to collective security, does overcome these problems to a certain extent, as it presents collective security as a positive contemporary construction and offers as such a concrete framework for its analysis and assessment. More precisely, it is an attempt at such a construction— a continual process in the exercise of collective security. Many consider it to be marred by failure—the inability to preserve or re-establish * Previously published in T de Montbrial and J Klein (eds), Dictionnaire de stratégie (Paris, Presses Universitaires de France, 2000) 305–9.

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international peace. It is certain that the practice of collective security within the framework of the United Nations has been through vicissitudes that appear to have reduced its ability to adapt. One may therefore question its future, both within the framework of the organisation itself and within a new, wider and more diversified framework.

I. Evolutionary Practice, Flexible Concept Collective security’s flexible nature is due to the uncertainty of its definition, in particular as soon as one stops considering it from the point of view of pure theory and more as a corresponding set of principles, means and practices. Two converging reasons explain this vagueness: on the one hand, collective security has known a historical evolution that is (possibly still) unresolved; on the other hand, its founding principle is based on a compromise.

A. The Stages of an Unfinished Construction Collective security has been put into practice in a progressive and incomplete fashion, its development in stages corresponding to a fragmented history. Three main stages characterise this evolution. They represent substantial progress, however, with results that remain incomplete. i. Classic Interstate Alliance The first stage is classic interstate alliance. In alliance structures, several states get together in order to project globally their answer to their own security needs. A collective answer is thus brought to problems that were initially individual. The group of states as well as each state individually will gain in power and thereby increase their capacity to protect themselves from the outside world and from any potential attack stemming from it. These are only the basic elements of collective security. They may indeed constitute the opposite of the objectives and principles of contemporary collective security. What is sought is more collective defence than collective security. While the solidarity of any alliance remains uncertain, its members do not actually project their increased power on the outside world; such an alliance, however, could be perceived by other states as representing a threat to their own security as it increases the power of constituent members. This means that far from having a deterrent or preventive effect, an alliance may well contribute to the perception of new threats. If other states then create a counter-alliance, then there is a risk that tensions, crises and conflicts will be globalised, rather than global security increased. The role that this process played in contributing to the outbreak of the First World War has been well documented.

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ii. The Pact of the League of Nations The second stage is epitomised by the Pact of the League of Nations after the First World War. This represented a decisive turn in the nature of collective security, wherein the created alliance this time had a universal vocation from which, in theory, nobody was excluded, so that the security effect could develop within an unconstrained space. Within this framework, there is no longer a logic of defence against the outside world but rather a logic of guarantee of mutual security that is, in principle, equal for all. Each member undertakes not to attack other states, to come to the assistance of other members in case of attack, and to benefit from the same guarantees. The preventive effects of such an alliance ought to dominate, as no state has to fear its partners, and each state should be dissuaded from attacking any of its partners, thanks to the formidable array of power that would be arraigned against it were it to act outside of its constraints. The predominance of this preventive dimension is well reflected in the triad ‘arbitration, security, disarmament’, which is characteristic of the rhetoric of the first years of the League of Nations. The emphasis is placed more on preventive, diplomatic, legal and political approaches than on coercive or military means of reaction. The actual implementation of this new system did not match up to expectations. Right from the start, it is clear that the conceptions of the League held by President Wilson and France were founded on different preoccupations. Whereas Wilson wanted a pacified international system based on equal security for all and on common values, France was especially concerned with solving its security problem in relation to Germany, fearing as it did the latter’s militarism and thirst for revenge. The compromise that resulted from these differences in approach was all the more dissatisfying since the United States did not accept its responsibilities, the US Congress refusing as it did to ratify the Treaty of Versailles and thus rejecting the League of Nations, which was attached to it. Moreover, incorporated as it was into the Treaty of Versailles, the League of Nations became in effect the guarantee of an instrument directed against Germany. Its guarantees were poorly developed at the legal level and therefore fragile. The weaknesses inherent to the Pact have been widely incriminated: the substance of the hypothesis of legal wars, which implies normative limitations, was corrected only in an incomplete and belated way by the KelloggBriand Pact (1928), which outlawed war as a means of national policy; and the weakness of the retaliation measures that the League of Nations Council could invoke in the event of noncompliance with the Pact are well known. In reality, the Pact could well have worked out if the two states that were its main beneficiaries and thus its main guarantors, France and the United Kingdom, had agreed with each other to guarantee that it was respected. Both, however, returned to policies based on their own individual national interests. The United Kingdom in particular returned to its traditional

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policy of fostering a balance of power in Europe, which at the time meant favouring the restoration of Germany. Balance of power and collective security were not readily compatible, with the result that the League of Nations was helpless in the face of the conflicts that erupted between the two world wars and of the aggressive policies of Japan (in Manchuria), Italy (in Ethiopia) and Germany. The League of Nations, increasingly abandoned by its members, including Germany, had disappeared politically by the time of the rise of Nazism and its subsequent policy of conquest and domination. Thus, even before the outbreak of the Second World War, the failure of the collective security model of the League of Nations was confirmed. iii. Improved Collective Security Throughout the Second World War, the Allies were preoccupied with the organisation of the future peace. Collective security was not cast aside but rather taken up again and apparently perfected. While the expression ‘collective security’ is not used in the Charter of the United Nations, it does nevertheless constitute the underlying inspiration for the system. Roosevelt, Churchill and then Stalin kept the idea of a universal security organisation that would put on a permanent footing the spirit of the grand Alliance. Emphasis was placed on coercive means, including military ones, which would allow for the dissuasion or the repression of aggression, through the institution, composition and powers of the Security Council. Preventive means were not abandoned, but the balance was shifted in favour of a powerful international organ, a sort of guardian of the peace, in theory well endowed with the necessary tools to accomplish this goal. It is possible to discern in this a belated—and therefore somewhat anachronistic—response to the dictatorships of the 1930s, which is prolonged by the dispositions of the Charter aimed at former enemy states. In spite of this presence of the past, the Charter is independent of any peace treaty. The United Nations appeared quickly, had a forward-looking character and was therefore much less linked to the legacy of conflict than was the League of Nations. These facts facilitated its universal adoption and its capacity to adapt to a particularly fluctuating political context. Collective security had therefore become identified with the principles, organs and mechanisms of the United Nations.

B. A Hybrid System The uncertainties and disagreements concerning the definition of UN collective security are rooted in the ambiguities inherent to its construction. Indeed, on the one hand, collective security takes its cue from some of the characteristics of a superstate, while on the other hand it remains rooted

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in a society of sovereign states. This implies the existence of a virtual contradiction but also important limitations, as well as possible variations according to whether one stresses one or the other of these two aspects. i. Superstatism In terms of superstatism—ie, extending beyond the sovereignty of states— UN collective security retains the radical limitation placed on the use of force by states and its subservience to justifications of collective interest, as stated in the Preamble of the Charter. It also implies the existence of an international organ in charge of maintaining and re-establishing peace, which can if necessary impose its decisions on recalcitrant states by the use of force. ii. Interstatism In terms of interstatism—ie, maintaining the sovereignty of states, which is enshrined by Article 2 of the Charter—UN collective security also retains the right of each state to determine its own security and thus to arm itself as it deems necessary, with no specific limitation being placed on this by the Charter; disarmament is thus not a necessary component of the system. It maintains the right to self-defence in case of armed attack, legitimate selfdefence being, according to Article 51, an ‘inherent right’; this right is both individual and collective, with this justifying alliances or pacts aimed at legitimate collective defence. Collective security thus rests on a compromise between contradictory aspirations, a compromise that runs the risk of becoming somewhat shaky or unstable. Moreover, while proclaiming an equal right to security for all, it can only work while recognising at the same time the particular responsibility laying with the most powerful states that are those best positioned to re-establish peace should this be necessary. It thus takes on in a way the characteristics of collective hegemony—but this is already spilling over into the specific framework of the United Nations.

II. The Framework of the United Nations Peace and security lie at the heart of the United Nations, and the Security Council lies at the heart of the UN institutional structure. The Charter is an international treaty, a legal instrument that has become quasi-universal, and the Council is a political organ. The construction of collective security is thus both legal and political. It raises in itself certain difficulties. These have come to light or have been made worse through practical experience, but they are the result of their actual conception. Collective security thus cannot be considered to be stabilised within the framework of the United Nations, which does, however, constitute its most solid foundation. On the

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contrary, it has been subjected to modifications, more often weakening than strengthening it.

A. A Legal and Political Construction The legal and political construction of UN collective security is situated on two levels. First, it corresponds to a set of norms that concerns states first and foremost and relates to their legal commitments. These are fundamentally preventive mechanisms that constitute the very basis of collective security. Second, the system largely corresponds to an international organ, belonging to the United Nations but composed of Member States. Its primary duty is not to guarantee respect of the Charter but more generally and vaguely to maintain international peace and security. Its role is not only deterrent but more especially corrective and coercive. i. The Rules and Regulations Governing the Use of Force The rules and regulations governing the use of force are the result of a combination of several measures designated in the Charter, most notably in Articles 2§3, 2§4 and 51. Article 2§3 includes the obligation to resolve interstate issues in a peaceful manner, so as not to undermine peace. Article 2§4, which is the most important, has a prohibitive aspect: ‘All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.’ In spite of the extensive nature of these prohibitions, it is more a regulation than to a total or in principle prohibition. Article 2§4 highlights two specific hypotheses and one general hypothesis. What remain are thus hypotheses related to the lawful use of force according to the Charter. Apart from the controversial hypothesis of humanitarian intervention, destined to put an end to massive infringements on human rights, one can mention support of Security Council actions, at the latter’s instigation and on the basis of its resolutions, as well as Article 51 (sanctioned self-defence). This last rule is particularly ambiguous. Some see in it an internal contradiction of the Charter, since on this basis it re-establishes the right to resort to the use of force, which would be contrary to its principles. Others consider it to be a simple exception to a principle of prohibition. This all the more so since self-defence, be it individual or collective (ie, defence of oneself or of others), is within the framework of the Charter and is in theory temporary. It is meant to prevent an attack from flourishing before the Council is able to take the necessary steps to deal with it. It is also logically possible to see in it not an exception but a consequence of the prohibition of the use of force: it is precisely because the use of force is not allowed that it is legitimate for one to defend oneself. Self-defence therefore becomes a technique of collective

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security, inasmuch as it is exercised under the control of the Council. It is, however, apparent that the right to self-defence is recognised by Article 51 itself as being external or even above the Charter: ‘Nothing in the present Charter shall impair upon the inherent right of individual or collective selfdefence.’ There would only be a problem in practical terms were the Security Council—which is the very soul of collective security according to the Charter—to be unable to exercise its responsibilities. ii. The Security Council of the United Nations The Security Council is the most powerful organ within the United Nations. Its competences and its powers make it the keystone of the mechanism of collective security, and its composition is meant to make it as efficient and influential as possible. Its competences are in principle limited to the area of peace and security, but it interprets these freely so that it can give them the scope and consistence of its choosing. Its powers are very important, in particular with regard to Chapter VII of the Charter, since it can according to its wishes recommend to Member States or request from them that they take several types of measures: the interruption of diplomatic relations, embargos, blockades and coercive military actions against states not respecting its decisions. To this end, Member States are thus meant to put at its disposal the necessary armed forces (Article 45). The powers of this international policing authority are limited with respect to only one element: the measures that it adopts to answer an exceptional situation are meant to put an end to the situation and to ensure a return to normality or to a regular situation; they are therefore by nature transitory or temporary, destined to come to an end along with the situation that they were designed to rectify. The Council therefore does not dispose of a normative power but may adopt measures only under exceptional circumstances. It does, however, remain sole judge of the duration of such actions. The composition of the Security Council ought to allow for the effective exercise of its attributes. It is made up of fifteen members, five permanent and ten non-permanent (after a 1965 amendment, which increased its number from six). The latter are elected for a period of two years by the General Assembly according to a representative logic taking into account the distribution between geopolitical groups. The former are specifically named in the Charter (Article 23§3): China (the PRC since 1971), France, the United States, the United Kingdom and the Soviet Union (Russia since 1992). This choice is a product of the circumstances of the creation of the United Nations, the victorious powers of the Second World War having reserved for themselves a dominant position in accordance with their power and the necessity for them to maintain an understanding in order for the Council to be functional. This points to a logic of efficiency, since without

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the participation of these states, the Council would run the risk of being powerless. Their position is reinforced by the conditions in which resolutions are adopted, since the permanent members all have a power of veto over fundamental issues. All of the conditions for the efficiency of preventive and corrective actions that any security system must possess are thus assembled. On the basis of the commitments of states, an international organ must dispose of these powers that may then be employed to such a dual purpose. Their very existence should serve as a deterrent in itself, and any infringement on international security, whatever its origin, should thereby provoke an appropriate collective response.

B. Difficulties The difficulties related to collective security as represented by the United Nations are constitutive, and practical experience has revealed rather than created them. The weaknesses inherent to the system result from a fundamental element: the Council is an interstate organ and therefore a political organ, the function of which rests on the convergence of the interests and positions of Member States—essentially those of the permanent members. This major difficulty—how to transition the interstate (ie, compromises between individual wills) to the international, (ie, the transcendence of collective interests)—takes on a dual aspect. On the one hand, the Charter is a legal instrument, founded on the commitments and legal obligations of states. How does one articulate the links between the legal and the political? On the other hand, the Council must be able to conduct coercive military action, implying the international use of armed force. It does not, however, dispose of an army of its own, this right being reserved for Member States only. How then may it not only decide but also undertake such actions, which lie outside and beyond the scope of what the Member States would themselves undertake in their own interest? i. The Articulation between the Political and the Legal The articulation between the political and the legal in the functioning of the Council raises several types of questions, some of which have dominated or even paralysed its ability to function. First of all, the general mission of the Council consists in maintaining international peace and security, not in maintaining respect for the Charter—and therefore not for international law either. This means that it is not required to react to violations of the Charter, including those of Article 2§4, but only to prevent or repress what appear to be attacks on international public order. With respect to this, its appreciation is discretionary and therefore political. It may consider internal disputes to be

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disruptive to international peace and security but at the same time deem that an international conflict is only minor or regional. It may choose to guarantee respect for a treaty external to the Charter, but it may also ignore military actions undertaken by a state in foreign territory. Nonetheless, this freedom of evaluation is often a false freedom, in the sense that it is the result of the inability of the Council to decide due to the veto of some of its permanent members. Second, and in correlation with this first point, the action as well as the inaction of the Council is outside of any kind of legal control. This may be understood in one respect in relation to the adoption of resolutions and in another vis-à-vis their content. The adoption of resolutions raises the problem of the veto, which may be exercised in a discretionary manner by any permanent member and may thus clearly paralyse the Council in the individual interest of those who exercise it. The power of the veto effectively paralysed the Council through the course of the Cold War. Members with veto powers are thus virtually placed above the Charter, and attitudes towards the veto are generally negative, as much in terms of legitimacy as in terms of efficiency. It is, however, also possible to defend a more positive vision of the veto: it plays the role of circuit-breaker, disconnecting the Council from the collective security system but also protecting it by avoiding direct or even physical confrontation between its permanent members, which could transform local conflict into broader war. At the same time, the veto preserves the Council for the future. Its efficiency is substantially linked to the political understanding of its permanent members. As for the content of resolutions, it is also free and not really predetermined by the Charter. Until recently, the Council practically never based the content of its resolutions on specific articles, and if a resolution does mention Chapter VII, it is to underline the binding nature of the resolution. This gives the Council great freedom in the appreciation of the relevancy of measures as well as their content. For instance, it has claimed the right to request the appearance of individuals before foreign criminal jurisdictions (Libya); the right to create international tribunals (the former Yugoslavia and Rwanda); and the right to impose a total elimination of weapons of mass destruction in a particular country (Iraq). Accordingly, its power remains undetermined and sovereign, so long as it is based on the maintenance or the re-establishment of international peace and security. Some criticise this latitude and advocate legal limitations on the powers of the Council. Apart from the fact that this would create a new source of paralysis, such a mechanism of control would fail to understand the political nature of these resolutions and would substitute one political evaluation for another—which would obviously exceed the mission of an international jurisdiction. Ultimately, it is the Council that controls itself, this being one of the functions of the veto, and such control rests on a logic of opposing forces, which better corresponds to the political nature of the Council.

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ii. The Articulation between the Political and the Military The articulation between the political and the military is even more delicate, if not impossible in the context of coercive actions. Since the Council does not dispose of an international army, it relies on the military participation of Member States, in particular the permanent members. Article 43 provides for the conclusion of agreements pertaining to the availability of their armed forces, and Article 47 establishes a Military Staff Committee, which is composed of the chiefs of staff of the five permanent members and is responsible for assisting the Council in all military questions. In practice, the projected agreements were not concluded and the Military Staff Committee did not work out. Could it have been otherwise? It would take a lot of self-sacrifice on the part of Member States for them to transfer the right to use their armed forces to an international body—beyond even the question of their political interests and security, to actually transfer the power of life and death over their soldiers. Such difficulties can also be seen with regard to the construction of the European Union, which rests on a much stronger degree of solidarity. Moreover, it is difficult to believe that a state might accept submitting its troops to the direction of a Military Staff Committee that is composed of representatives of states that would not themselves participate in military operations. In reality, with the exception of certain strongly criticised aspects of the Congo operation in 1961, military actions undertaken for the benefit of or with the endorsement of the Security Council have been carried out under national command. During the Korean War (1950–53), the Council asked the United States to designate a Commander-in-Chief, with the United Nations merely providing the required flag. During the Gulf War (1991), the Council was content simply to authorise Member States to use ‘all necessary means’ to obtain the liberation of Kuwait, and the actions of the coalition were undertaken under national flags, under US commandment. This corresponds to an essential, not accidental limitation of the security system of the United Nations. Moreover, it was also weakened by several actions, leading the UN security system more clearly away from the principles of collective security.

C. Distorting the Character of Collective Security Without actually formally abandoning the framework of the Charter, several evolutions have led to substantial alterations of its initial framework. Of unequal importance, they have converged towards the progressive dispossession of the Security Council. More precisely, these evolutions have underscored the Council’s fundamental inability to act: first was the return to alliance systems; then came attempts to transfer Security Council responsibilities to the General Assembly; finally, the concept of non-coercive military actions with ‘peacekeeping operations’ was developed.

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The Atlantic Alliance was created as early as 1949 with the beginning of the Cold War, at the initiative and under the aegis of the United States, in order to intertwine North America and the defence of western Europe—first and foremost that of West Germany—in the face of the Soviet threat. The Atlantic Alliance was founded on Article 51 of the Charter and on collective self-defence and hence is in theory inscribed in this context. However, the fact remains that this regression of collective security towards collective defence was solidified in 1955 by the Warsaw Pact, which grouped together the Soviet Union and the popular democracies of central Europe, following the admission of West Germany to the North Atlantic Treaty Organization (NATO). With two antagonistic alliances face to face from then onwards, Europe returned to a balance-of-power logic, which was complemented by nuclear deterrence. It was only once the Warsaw Pact and then the Soviet Union disappeared in 1991 that the basis for collective security was reestablished. Even then, the United Nations still had to deal with NATO, which was maintained and then enlarged. The relationship between the organisations remains far from clear. Another historical distortion, this one internal to the United Nations, has aimed more at protecting the universal character of the mechanism. During the Korean War, in the face of a potential Soviet veto, the United States was able to get the General Assembly to adopt Resolution 377 (V) of 3 November 1950 (sometimes referred to as the ‘Uniting for Peace Resolution’ or ‘Acheson Plan’ after the former American Secretary of State). It provides for the possibility of the General Assembly recommending actions, including military actions, in case the Security Council is paralysed due to use of the veto. This represents a manifest infringement on the initial equilibrium of the Charter, even if it may be justified from a legal point of view by the flexibility of the Charter and from a political point of view by its conformity with the objectives of collective security. After several vicissitudes and limited practical application, the Acheson Resolution has found itself marginalised by the desire of all the permanent members not to let the system fall into the hands of the lesser powers controlling the General Assembly. This is all the more since they do not have the military or financial means of taking on the responsibilities involved. The practical—and regressive—effects of the third evolution of the UN collective security system have been the most spectacular. They concern the development of peacekeeping operations, which were numerous and diverse for nearly forty years, from the mid-1950s to the mid-1990s. The basic idea, encouraged by the Secretariat of the United Nations and long supported by the Member States, was that even though coercive military actions may have been rendered impossible by the Security Council, it was still possible to undertake limited actions that were politically moderating and militarily pacifying, non coercive, and based on the consent of all parties involved in a conflict or by its solution. Action taken in this vein tended

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to be more political than military. It implied that, within the context of a situation of conflict, a cease-fire should be negotiated beforehand and the search for a fundamental agreement should have been initiated. In such a context, symbolic contingents of ‘blue helmets’ can be deployed in order to oversee the cease-fire, and their presence may avoid a resumption of hostilities. After a long phase of relative success, this form of collective security— watered-down at least in relation to the provisions of the Charter—became a victim of its own success. The number of operations has been increased, often at the same time as they have been extended; their objectives have been enlarged and diversified, going as far as to include establishing a kind of temporary protectorate in order to allow for a state’s administrative and political reconstruction; and finally, these operations have been carried out in contexts that have become increasingly less favourable, while cease fires have not been concluded or stabilised, so that disarmed soldiers have found themselves at the centre of conflicts without a mandate and without appropriate resources—powerless witnesses or virtual hostages. Attempts to strengthen these operations by referring to Chapter VII have failed to save them, due to the failure to identify adversaries clearly and bring together the means necessary to overpower them. The overlap of a non-coercive logic and of an improvised and additional coercive logic was fatal to these operations, in particular in the former Yugoslavia with the United Nations Protection Force (UNPROFOR) and in Somalia with the United Nations Operations in Somalia (UNOSOMs). Thus, just when it appeared to be possible for the mechanisms of the United Nations to regain their full efficiency after the end of the East–West confrontation, the system entered into a new period of crisis during the Gulf War. Given this crisis and the new context of international relations, one may question whether collective security still has a future.

III. The Future of Collective Security The precedent of the Gulf War demonstrates that the UN mechanisms of collective security can survive long paralysis. It also demonstrates that their renewal may not have any immediate future. Finally, it demonstrates that the system can function only if the United States participates, as part of a collective or even individual hegemony. This apparent fact in turn contributes to the legitimacy of American hegemony. To all appearances, no alternative universal project has emerged to challenge that of collective security, and the period is dominated by empiricism. The theme of globalisation, whatever its substance, does not really apply when it comes to international security but is marked rather by the regionalisation of problems and their solutions. Two possible outcomes, one optimistic, one pessimistic, can be foreseen.

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An optimistic vision would lead to an enlargement and deepening of collective security. On the one hand, the theme of common security, which is dear to the social democracies of northern Europe, would lead to the firm establishment of peace through the elimination of the root origins of war. This would correspond to a logic for which the European Union but also NATO, which seeks to expand, stand as illustrations for their members. On the other hand, an enlarged UN Security Council, which would be endowed with legitimacy as much as with new capacities, would retain its universal responsibilities. It could moreover dispose of a military arm, with NATO ready to enlarge the scope of its undertakings, its techniques and its area of intervention, thus becoming an instrument of collective security and not merely of collective defence. This peace-inclined vision would also solve one of the most difficult problems of collective security—the articulation between the regional and the universal—which the Charter, in spite of Chapter VIII, has until now not been able to resolve. It implies three essential conditions: the extension of NATO should occur without any hiccups and on a consensual basis; its capacity to act as a universal military arm should be accepted by its members and by their partners; the increase in number of permanent members of the Security Council is possible, and if this should occur, it should not turn into yet another source of paralysis. The input of new members would indeed only be positive if it were to rest on a logic of efficiency of the Council and not on some unclear and unpredictable kind of desire to increase its ‘representative nature’. None of these conditions appears to be met right now. A pessimistic vision would include the disappearance of the United Nations and an underlining of regional differences in terms of security. Alongside highly organised security zones such as Europe or stabilised ones such as the American continent, would subsist zones of tension and conflict, where only armed peace could be maintained—an equilibrium rendered fragile by arms races, including weapons of mass destruction, such as in Asia or in the Middle East, at global and sub-regional levels. Finally, one would be left with a grey zone, marked by weak states, ethnic strife and the interposition of the major powers as pacifiers, which would in reality consolidate their respective competitive positions. This type of forecast takes recent trends as starting points. If, however, the future does depend on the past, it does not necessarily exist as its continuation.

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15 Weapons of Mass Destruction and International Security*

W

MD: HERE IS an acronym that everyone now recognises without difficulty, but the use of the phrase ‘weapons of mass destruction’ is quite new in French. For some time it has been familiar in English to specialists, but in French, we have more readily referred to nuclear, biological, chemical or radiological weapons (ABC, NBC and CBRN respectively). The recent popularity of the English term seems to be linked to the aftermath of September 11 and the fear of a ‘hyper-terrorism’ that might employ these types of arms or materials, even if they were not used in the attacks of September 11. The subsequent efforts to prevent or quell the proliferation of these weapons or instruments have made the expression common in political and security writings. The term ‘weapons of mass destruction’ connotes a multifaceted threat that may be similar in effect to that generated by ABC, NBC and CBRN but having virtually no limits. The three words that constitute the term WMD convey a sense of limitlessness, and their combination makes the threat all the more fearsome. The sentiment indicates that the consequences are both unpredictable and undetermined, yet certainly indiscriminate and deadly. In this respect, it makes sense to study the threat of WMD in its entirety, but such analysis leads most notably to a distinction between three types of weaponry that are very different, both technologically and strategically.

I. A Heterogeneous Category of Armaments It is easy to confuse the most recent nuclear weapons with chemical and biological (or bacteriological) weapons. In practice, chemical weapons are most commonly associated with the horrible abuses of such arms during the First World War. They evoke an image of treachery, of the threat to the rules of war and humanity, and even then only seemed justified in terms of retaliation. We generally attribute their first use to Germany, but the Allied forces also resorted to them. The historical use of biological weapons in conventional state warfare is less clearly documented. No one claims to have * Previously published as ‘Ouverture: ADM et sécurité internationale’ (2005) 13 Questions internationales 4–7.

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used them, and they thus seem more the product of nightmare. Research on the matter is in short supply, but the spectrum of their potential use is certainly the largest, as they can indeed be employed on an individual basis as well as on a widespread level. Chemical and biological weapons have many common characteristics. First, these weapons are all but totally banned in armed conflicts, notably by the 1925 Geneva Protocol, of which France is the depositary state. Subsequent international multilateral treaties have also undertaken the eradication and prohibition of these weapons. Beyond prohibition, fabrication and possession were banned respectively in 1972 by the Biological Weapons Convention (BWC) and in 1993 by the Chemical Weapons Convention (CWC). As such, chemical and biological weapons do not figure in state military strategies, and their utilisation does not, at least officially, correspond to military doctrines that might otherwise offer a rationale for their use; on the contrary, the implication is that such a use would be something disrespectful and scandalous. Despite the international instruments that condemn them, however, their threat has not disappeared, and we know how they have been invoked against Iraq in recent years. Furthermore, other nations are still suspected of possessing or trying to possess them. It is apparent that the objective of eradication and making all nations safe from them are as yet far from becoming reality. Chemical and biological weapons are, however, very different from WMD. Chemical weapons are not really weapons of massive destruction but rather weapons of terror—as much for combatants as for non-combatants. This terror goes well beyond their potential for concrete destruction, which remains subordinate to factors that are difficult for eventual users to master, such as atmospheric conditions, protection of targets, etc. They can on the other hand have indirect effects as well, such as when they target the environment; these indirect effects are potentially even more lasting. As for biological weapons, the difficulty for their users to protect themselves makes their use potentially hazardous but not impossible. Why then classify and group such weapons in the same category as nuclear weapons? In actuality, they should be defined by their differences rather than by their similarities: they are differentiated from so-called classical weapons, also referred to as conventional weapons. That is why we have historically grouped together chemical, biological and nuclear weapons without questioning the internal principle that justifies homogeneous categorisation.

II. Nuclear Weapons and Deterrence: The Organising Principle of International Security In every respect, the nuclear weapons constitute a unique category. They have in common with biological and chemical weapons the fact that there exists no coherent doctrine for their use, and they thus seem to be

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strategically destabilising. Since the development of nuclear weapons, chemical and biological weapons have sometimes been considered in the context of deterrence, as ‘a poor man’s deterrent’. By contrast, deterrence has long been at the heart of the development of nuclear arms, alongside efforts to control, regulate and, if possible, limit their development. In other words, there has long been an established relationship between three notions: nuclear weapons, deterrence and arms control. The logic of deterrence follows a general path: weapons exist; they should have a role; they should not be used. Hence, their strategic efficiency relies on their not being used, which entails many consequences. For example, deterrence, which is a capacity for prevention, is defensive, conservative and at the same time stabilising. This stabilisation is better obtained when the states endowed with nuclear weapons are less numerous and when they come to an understanding of the implicit rules of the game, such as avoiding an unbridled race for armaments between themselves. At this point, confirmed by the experience of the last sixty years, nuclear deterrence becomes an organising principle of international relations—and at the same time, a theory for maintaining peace, since nuclear war will be nothing but a failure of the system. There are many consequences of this organising principle. It commands a strict hierarchy among states, based on distinguishing those in possession of nuclear weapons and those not. Among nuclear states, deterrence demands at least a strategic communication between those on one side of the symbolic ‘red line’ that separates the United States and the former Soviet Union. Such communication aims to avoid accidents and misinterpretations and ideally institutes a sort of co-management of the deterrent, including arms control and even reduction agreements. As for those states not possessing nuclear weapons, they require a strict prohibition against proliferation—the object of the Nuclear Non-Proliferation Treaty (NPT)— in exchange for security guarantees and even promises of eventual nuclear disarmament—although nuclear disarmament in itself clearly signifies renouncing deterrence. For all states, deterrence requires that other types of weapons of mass destruction—or those qualified as such—be renounced so as not to, in the occurrence, outflank these stabilising strategic weapons. Hence, the politics of arms control seems like a by-product and condition of nuclear deterrence. For many decades between the end of the 1950s and the 1990s, bilateral treaties or conventions multiplied. The key to this was principally an American–Russian understanding. They did not aim to get rid of nuclear weapons but on the contrary to ensure their maximal efficiency to the benefit of their holders, while the general renunciation of biological and chemical weapons reinforced the privilege of the deterrent. This picture hence underlines the radical differences between the three types of weapons that are generally covered by the expression of WMD— to which no doubt should be added long- and short-range missiles and certainly radiological weapons, which are a variant of nuclear weapons.

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The strategic scenario described above is ordered, differentiated and hierarchical. Grouping biological, chemical and nuclear weapons in a single category also emerges as an artificial yet justifiable tactic, since on one hand all three types break with the logic of conventional weapons, yet on the other hand, the development of biological and chemical weapons can contradict the stability of the doctrines inspired by nuclear weapons.

III. Nuclear Weapons and Deterrence: The Risks of Severing the Link The historic link between nuclear weapons and deterrence is not in fact substantial. In other words, nuclear weapons exist independently from deterrence. They predate deterrence, and they run the risk of outliving it, such that deterrence may fail, and nuclear weapons may eventually be used. Today, there are many convergent factors that increase the risk of nuclear weapons being deployed. First there is an objective proliferation among nuclear states. It is rather easy to understand that the rise in the number of nuclear states systematically increases the possibility of their use. There is also a subjective factor regarding certain existing, or soon to be, nuclear states that are under dictatorial regimes and therefore unpredictable and possibly irresponsible. From a technological and practical perspective, the miniaturisation of nuclear weapons increasingly allows them to be used on battlefields with relatively contained damages, which raises the temptation to use them. Finally, the potential acquisition of fissile material by non-state actors, terrorist networks or criminals means that nuclear weapons could become instruments of terror or blackmail. All of these risks are clearly not of the same order, nor of the same origin. Some of these factors involve states, some of them longstanding nuclear states, others on their way to becoming nuclear states. They also do not carry the same consequences and can be appreciated very differently from the point of view of international security. It remains true, however, that the classic and reassuring idea of nuclear weapons being weapons of deterrence that create a form of sanctuary and a stabilising force controlled by those possessing them, is profoundly challenged. The result may be the trivialisation of nuclear weapons, that they will be seen only as the strongest option in an arsenal of available weaponry. Hence, if we disassociate nuclear weapons from deterrence—which, we should remember, assumes non-usage—there is no longer any reason to consider nuclear weapons as specific weapons. Either we consider nuclear weapons as being sufficiently miniaturised to be usable, and they lose the fundamental characteristic of a WMD; or they maintain their capacity for massive destruction. But what then differentiates them from chemical or biological weapons, for which there are treaties that seek their universal eradication?

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Today, the states assisting in the proliferation of nuclear weapons and the non-state actors suspected of seeking them have a neither exceedingly defensive nor strategic conception of the weapon but rather a political one. What make nuclear weapons desirable are no longer perceptions of serious threat against which only extreme means can protect. They become a manifestation of frustration rather than of deterrence: seeking nuclear weapons expresses the depth of the frustration felt by some with regard to the state of international relations and the desire to compensate for weakness; frustration towards certain neighbours, for territorial on political reasons; frustration towards the general world order that does not adequately recognise states that claim nuclear status and seek to increase their weight in the world order. The fact that the ‘legal’ nuclear states are all permanent members of the UN Security Council only reinforces this perception, even if it is a misconception—though only because the composition of the Council was determined even before the emergence of nuclear weapons. The risks of proliferation hence threaten to win out step by step.

IV. Rethinking WMD Control The decline of deterrence as an effective role for nuclear weapons was mostly unexpected. The end of the East–West confrontation meant the end of a group of treaties and agreements relating to the reduction and elimination of WMD; and the apparent obsolescence of the treaties seemed to indicate that these weapons were to be progressively and durably marginalised, if not completely eradicated. Nuclear states seemed to be on the path to reducing their stocks. Attention turned towards new types of conflict involving civil wars, ethnic conflicts and failed states, which tended to rely on very deadly but conventional, even rudimentary, weapons. Nonetheless, to this present-day reality can be added the return of rampant nuclear proliferation. From India to Pakistan and North Korea to Iran, this wave of proliferation is closely observed by many states that have no intention of sacrificing their own security to repair the cracks in the arms control system, from which they may still benefit. The present system certainly has weak points. It relies on mutual consent, pretends to be balanced, assumes trust between partners and relies on verification measures that are voluntary in nature. It is therefore essentially preventive, requiring each state to put into place its own measures and to police itself; it hardly contains any coercive measures in the event that a state acts in bad faith. The prevailing sentiment today is that this system is insufficient. We could of course consider that the best solution for amending it would be complete and definitive elimination of WMD, a triple-zero option of sorts, which would in particular assume the complete eradication of nuclear weapons. But no one is seriously envisaging this. The various concerned states diverge on the measures to be taken and perceive the levels

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of threat differently. But a pragmatic convergence seems to be forming, towards a group of measures designed to be self-completing, self-supporting and mutually reassuring. It is therefore advisable to maintain the base of the big treaties that are in force—the NPT, the BWC and the CWC in particular—in order to complete their measures through agreements that limit the export of dual-use technologies; and to maintain their guard when it comes to the combined verification mechanisms. In addition, the coercive component of the system, which protects more efficiently against proliferation risks, should also be reinforced—and in doing so, the consent of those concerned should not always be the primary focus. In this coercive spirit, which corresponds closely with American actions, other frameworks and other methods should be used. The Geneva Conference on Disarmament remains the unique instance of multilateral negotiation on disarmament, but the means it presents are not always appropriate. The UN Security Council can in turn operate via an institutional avenue, adopting compulsory decisions for all, reverting to authoritarian supervision measures, seeking Member State assistance, reaching out to non-governmental actors and making use of a range of coercive means to reinforce its decisions. It has begun to do so but is still far from deploying the range of its potential. Special ad hoc coalitions of the willing have formed around the United States, and they can also organise the collective fight against proliferation, particularly in the field of marine transportation. Without an adjusted and complex governance regime for a reinforced and renewed arms control, only two equally damaging options remain: either allow proliferation to develop without foreseeable limits at an increasing rate, or allow for counter proliferation military operations to take place, even preventive wars against suspected nuclear states, at the risk of aggravating situations alleged to be under control.

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16 The UN Charter and International Security: Present and Future*

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HE SUBJECT OF the revision of the United Nations Charter, which after sixty years of existence and the end of the East–West clash appears to have outlived its utility, has been on the agenda since the beginning of the present century with no outcome likely in the foreseeable future. This is understandable: a careful reading of the Charter brings out clearly its contemporary, even forward-looking character. Indeed, the main problems of international society are at the universal level and are in many respects permanent. Many of these problems are addressed by the Charter: the respect of Member State sovereignty, territorial integrity and political independence; cooperation to ensure peaceful and friendly relations among nations based on equal rights and self-determination of peoples; regulation of the use of force in international relations with the primary responsibility of the maintenance of peace and security vested in a powerful international body; and the freedom to enter into regional agreements provided they respect the principles of the Charter. Essentially, all that is required to respond to present and future problems facing the world is to implement the provisions of the Charter in their entirety and in good faith. The Charter’s first concern, and rightly so, is for international peace and security. It advocates a dual approach. On the one hand, it talks of a preventive approach or soft security, a civil concept that flows from Article 55 of the Charter and more generally from Chapter IX. The preventive approach is based on economic and social progress, public health, cultural cooperation, education, universal and effective respect for human rights for all without any form of discrimination. In addition, there is the obligation to settle all conflicts among states peacefully. On the other hand, the Charter also suggests a military approach or hard security, which is to be more limited in scope, to discourage military threats and, if need be, to formulate the necessary responses to armed violations of international peace. Chapters V, VI, VII and VIII deal with hard security, and the Security Council has a prominent role.

* Previously published as ‘Repenser l’ONU, de la sécurité à la solidarité—Les défis de la paix et de la sécurité’ (May 2005) Agir 51–59.

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The problems encountered in the field of international relations both in the past and in the present are thus due essentially to the non-implementation or insufficient implementation of the Charter rather than to any conceptual or structural flaw. Earlier, it was the East–West confrontation and the often violent challenges of decolonisation that had called into question the efficacy of hard security. At the same time, opposing ideological, economic and social systems as well as the phenomenon of underdevelopment had prevented the effective implementation of the promises contained in Article 55 with respect to cultural, economic and social cooperation. Yet these hurdles in no way invalidated the relevance of international cooperation—or for that matter, institutional cooperation. Simply put, what could not be achieved at the universal level was attempted via alternative means at the regional level. This is how we witnessed the emergence of all manner of regional organisations and the ensuing competition between them. They gave concrete shape to parallel and competing constructs of international society. European construction fulfilled the objectives of Article 55, establishing a structural peace among its members such that hard security became irrelevant in their mutual relations; the North Atlantic Treaty Organization (NATO) provided a transatlantic security link that resulted in effective collective security for its members. As for socialist countries, they had the Warsaw Pact and the Council for Mutual Economic Assistance (Comecon) as equivalents. Developing countries rallied around the Non-Aligned Movement and the Group of 77, loose composite groupings that could never achieve the same degree of cohesion but whose primary objective was to exercise their influence within the universal framework of the General Assembly of the United Nations. Clearly, in this competition, which reproduced the different orientations and aspirations of the various Member States, the transatlantic alliance and the European construction had the upper hand. This is borne out not just by the collapse of the socialist camp and model but also by the historically unprecedented capacity of attraction, be it hard security or soft security, of the European construction and NATO. They are in the process of absorbing most of their previous competitors and constitute the fundamental organisational hub of an expanding Europe. It is equally clear that neither of these two institutions can claim to universality; nor do they have the will to do so. As for the diverse regional organisations that survived the collapse of the socialist camp, they are equally incapable of offering a blueprint for a universal alternative. They are in principle limited to restricted frameworks such as the Organization for Security and Co-operation in Europe (OSCE) or, at a different level, the African Union; or they rather aspire to become part of a reinforced universal structure. As such, we are witnessing a dual phenomenon at the heart of which lies universality. On the one hand, there is a renewed demand for universality as reflected in themes such as globalisation, global governance and, in a

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more limited fashion, challenges not restricted to any particular geographical region such as international terrorism, trafficking of all kinds and climate change. On the other hand, there is a growing awareness of the lack of universality. Bodies like the Group of Eight (G8) and even the Group of Twenty (G20) and the World Trade Organization (WTO) only partially make up the deficit at the level of soft security. The capacity and relevance of the UN Security Council have also come into question at the level of hard security. These doubts have nothing to with the intellectual and legal capacity of the Council to address the contemporary challenges of security— Resolutions 1368 and 1373 were brilliant responses to the challenges of terrorism, and with Resolution 1441 the Council was in a position to deal with the Iraqi challenge. If there are misgivings, they are chiefly on account of the fact that the most powerful member, the United States, is constantly questioning the institutional multilateralism embodied by the United Nations. Certainly, the United States is not the only country to criticise the United Nations. To put it simply, there are several types of criticism. The more radical criticism, somewhat weakened by the collapse of the social camp, seeks completely to recast the Charter to subordinate it to the objectives of the nonaligned countries and to radically strengthen the General Assembly, which they control. More limited criticism calls for reforming the Security Council, especially its membership, to make it more representative of the new balance and heightened diversity of international society. Finally, there are those who consider that the entire UN edifice, both at the level of principles and institutional structures, has become obsolete and impotent, and they therefore challenge the relevance and efficacy of the United Nations altogether. To some extent, it is pointless to ask whether these accusations have objective bases. The problems of international society are defined by those who have the power to do so and in general do not reflect any real inadequacy. The manner in which issues are defined and the priority given to them depend to a large extent on the power of those who raise them. It is futile to point out that over the last fifty years the Charter has shown a remarkable capacity to adapt in terms of both its principles and its institutional mechanisms. It has weathered all the major conflicts and contradictions of international society while expanding steadily its universality. Its contribution to the maintenance of peace during this disturbed period has been positive on the whole. No competing institution has emerged or even been considered. No one doubts the utility of such a universal organisation with widespread jurisdiction and powers. The United Nations is perfectly capable of meeting the security needs of international society within the framework of the Charter.

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I. The Security Requirements of International Society First and foremost, we need to underscore the general decline in confidence levels among various UN partners both in terms of interstate and non governmental relations due to the deterioration of international relations these past few years, especially but not solely on account of September 11. The question of mutual confidence is crucial. It is an essential component of international security; it is both its precondition and product. Security remains the key word in international relations of any nature, governmental as well nongovernmental, and in all spheres, whether military, civil, economic or social. The perception and need for security has been simultaneously broadened as well as more integrated.

A. The Need for Confidence in International Relations It serves no purpose to harp on the deterioration in the level of international confidence these past few years. The divergences between longstanding allies are only its most visible expression, and the crisis triggered by events in Iraq demonstrates the harmful consequences for all, including the United Nations. The deterioration has a domestic dimension as well, as can be seen from the public scepticism about the justifications given by governments in democratic countries. But international terrorism; the heightened risk of the proliferation of weapons of mass destruction; various ethnic conflicts in various parts of the world; the difficulty in reaching universal agreements in fields like the environment and international criminal justice; the sometimes violent challenge to globalisation; and the expansion of unregulated nongovernmental organisations (NGOs), which often give so-called ‘international civil society’ a worrying and occasionally deadly aspect, all make international relations unpredictable, tense, even dangerous to an extent unknown since the end of the East–West confrontation. In this respect, it is useful to recall the positive role played by the establishment of confidence-building measures among partners as the Cold War was drawing to an end. It was thanks to this confidence that such farreaching and potentially difficult changes as the reunification of Germany and the collapse of the Soviet Union and socialist camp took place peacefully and democratically in a clearly consensual atmosphere. The importance of the Helsinki Process and the confidence-building measures of which it was the laboratory has often been downplayed. It did not aspire to anything as ambitious as the European construction, nor did it have the concrete nature of the strategic dialogue between the United States and the USSR or the loftiness of the New International Economic Order around which the Third World rallied. Yet these confidence-building measures created the strategic climate for peace and world security.

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Certainly it is not possible to replicate mechanically a process such as the Helsinki one at the international level. But the idea of confidence-building measures must be taken up, further developed, adapted (perhaps within appropriate regional forums) and promoted. Mutual confidence does not imply a convergence of interests and positions; nor does it assume any cataclysmic change. It has more to do with the perspective of international relations than their architecture. But it does lead to increased transparency and predictability in behaviour. Is it necessary to point out that the very existence of confidence-building measures is itself an indicator of the level of confidence in the world, given that the United Nations provides a forum for permanent interaction in which Member States can peacefully state their positions and exchange views? As important as this is, it is insufficient. The existence of the United Nations does not result automatically in international confidence, even when considered solely from the point of view of its Member States. We thus need to reflect on how the organisation can develop from within as well as contribute to building a climate of confidence externally. As has already been stated, confidence is based on the predictability of not just behaviour but also problems—in other words on a general reduction in uncertainty and on the capacity to anticipate and identify the challenges that partners are likely to face. It has also been said that governments are very often concerned with the short term and the management of domestic problems, such that they are unable to give international issues the objective attention they demand. This is particularly true of democratic governments that are accountable to their voters. Recalling Tocqueville, democracies are inclined to decide external issues on the basis of domestic considerations. International society thus needs to have independent and pluralistic methods for the analysis, evaluation and anticipation of problems it has to face. This does not mean instituting a council of scholars that would establish a government of wise practitioners; nor does it mean calling upon the services of committed and militant NGOs, which have their own ideological agendas and in any case do not offer any real guarantee of transparency, competency or independence. The idea is more to form a network of independent research centres that could provide the United Nations with a prospective analysis of the nature and priority of international problems. The intention is not to set up a new UN bureaucracy. Indeed, all too often studies commissioned by the United Nations are carried out by groups of experts indirectly or directly dependent on their governments; such studies are mere compilations of the various national points of view, a kind of bureaucratic ventriloquism in which no conceptual breakthrough is possible. The independence and plurality of authors would strengthen confidence in their analyses, and flexibility in procedure would avoid the need to set up a quasi-permanent body of professionals, it being understood that no network with the same composition can intervene more than once.

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Clearly, confidence in international relations is one of the issues, perhaps the foremost issue, to which such a system could be applied. A similar exercise could be undertaken with respect to international security. In a wider context, it could provide to the United Nations, in both general and specific terms, invaluable indicators of the requirements of international society as perceived by its various components without going through the necessarily partial and deforming filter of government, which would stand to benefit from such an analysis. Countries that already have centres and institutes of this kind could see the scope of their activities increase and would be in a position to assess their international standing; countries where they do not exist would find it easier to develop such institutions and in any case would have at their disposal analyses expressing pluralist and independent points of view.

B. The Need for Broader Security: Hard Security and Soft Security The broader need for security can be understood from three perspectives: spheres covered by the notion of security; the partners involved; and the approaches undertaken. In respect to spheres, hard security and soft security—military and non-military security—have become increasingly interwoven. With regard to partners, states may very well remain at the heart of the military dimension of security, but various nongovernmental actors nowadays also indisputably play a role. International organisations tend more to provide responses than to define needs. With regard to approaches, along with the promotion of soft security, greater attention is being paid to preventive approaches. All these aspects call for some clarification. i. Widening Spheres The UN Charter, as we have already seen, takes a comprehensive view of international security through Article 55, which covers economic, social, cultural and humanitarian cooperation with the purpose of developing friendly and peaceful relations among nations. However, the emphasis is on a narrow approach that focuses on regulating the international use of armed force and giving wide powers to the Security Council. At the same time, military security continues to be viewed in conventional terms, namely the threat of armed aggression by one state against another, which requires in return an effective military response. We know rather that in practice the increase and diffuse nature of international violence over the years and the consequent heightened need for armed non-coercive international intervention or peacekeeping operations have necessitated a broader understanding of military security. However, it must be noted that such widening acquires a negative aspect when it results from the failure of states, their inability to ensure public

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security on their own territory and growing internal conflicts. As such, purely internal matters become international problems, blurring the domestic–international distinction, which directly concerns the principle of non-intervention in the Charter. This does not in any way impinge on the jurisdiction of the Security Council, as Chapter VII does not provide for any such distinction. On the other hand, often what may start out as a problem of soft security—respect for human rights, normal functioning of public services, development—gets transformed into a hard security issue because it is only fully understood after it has brought on a conflict that requires at least a partially military solution. The failure of soft security leads to some extent to the need for hard security, and the numerous discussions on humanitarian intervention provide an extreme example of this. At the same time, enlargement is internationalisation by default—the transposition of the civil to the military. A more positive expansion of the concept of security results from the increasing need for international regulations in spheres traditionally considered to fall within the purview of states, notably criminal justice but also including questions related to pollution, the environment, regulation of economic and monetary exchange, public health, demography and even the international protection of human rights. Such regulations are very much a matter for security in the broad sense of the term, as their purpose is to shape the orientation and promote the predictability of behaviour. Such objectives are closer in spirit to Article 55, and the control of states remains determinant, though it is exercised in a collegial and consensual manner. In this regard, it is not the intervention of the United Nations that is sought, even if it is competent to act in such matters. These issues cannot be dealt with decisively within the framework of the United Nations; instead they have become the purview of specialised institutions like the International Monetary Fund (IMF) and the World Bank, of regional organisations or of autonomous organisations like the WTO. ii. The Diversification of Partners These institutions are approached not just by states but also by nongovernmental actors, implying a diversification of partners. Nongovernmental actors being extremely varied, we will confine ourselves to identifying four major types. First, there are NGOs, a very composite category. The common feature of all NGOs is that they are non-profit organisations without political affiliation that work outside the frontiers and bias of their states of origin. They seek publicity and media support, even if they often remain opaque. They need to be separated carefully from terrorist groups and mafia networks whose actions may be spectacular but are basically clandestine in nature. Other movements are more political and more closely confined to given states—armed factions, ethnic, cultural and religious minorities in particular.

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Finally, there are transnational firms, economic players driven by the logic of profit maximisation. These four categories are positioned very differently with respect to the need for security. NGOs are often the most vociferous in clamouring for normative international regulations as well as specific and operational intervention to deal with specific issues. They also seek an internationally recognised role, rights and the means to act—the right to intervene, access to victims, and heightened public opinion vis-à-vis the need for armed intervention in the face of serious violations of humanitarian law. Mafia networks and terrorist groups on the contrary seek various reasons (which often feed each other) to sidestep or transgress regulations, both national and international. In such cases, it is states that call for repression and international action against them. Minority movements and armed factions are in a more ambiguous situation. Minority movements look to soft security as a means of international recognition and as a guarantee of their rights. Armed factions are less concerned with soft security and often pose a danger to hard security, which is more likely to cause international reaction. As for transnational firms, they are mainly concerned with soft security and seek first and foremost complete freedom of international action and movement. iii. The Preventive Approach and the Corrective Approach to International Security The distinction between the preventive approach and the corrective approach to international security can only be partially clarified within a framework that polarises soft and hard security. Part of the reason for this is that the objective of preventive measures is in principle to avoid the use of armed force. Such measures include all the instruments related to the limitation and control of weapons, even the existence of the Security Council, since its jurisdiction and powers are expected to act as deterrent within the logic of collective security. The call for disarmament has been given by very diverse states, depending on the type of weapons under consideration. Developed countries generally favour the non-proliferation of weapons of mass destruction and the limitation of small arms, whereas many developing countries want first and foremost complete nuclear disarmament and are less concerned by the movement of small arms, which nonetheless poses a more direct threat to them. However, what is noteworthy is that the paradox of the doctrine of counter-proliferation (advocated by the United States) and the notion of armed coercion against proliferating states to the extent of launching preventive strikes shift the disarmament enterprise from soft to hard security— but this problem has more to do with responses than needs. Generally speaking, however, the preventive approach is based on peaceful methods and tends to eradicate violence from its roots. In this context,

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the main demand is for more comprehensive regulation of international society. What is remarkable is that the United Nations does not seem to be the central issue and this is for two reasons. On the one hand, the need for increased regulation has not been formulated by UN bodies, which by nature favour compromise among states and seek interstate consensus, dependent as they are on internal power equations. What is being applied in practice is not so much the principle of subsidiarity of well thought out and stated international regulations as normative minimalism. The abundance of texts, resolutions and other UN documents should not delude us; they have little normative authority, which is how the Member States want it. On the other hand, the need, emanating as it does more often than not from nongovernmental actors, does not focus so much on the United Nations as on other mechanisms and institutions such as the International Criminal Court, human rights and anti-globalisation (or alter-globalism). This is symptomatic of the inadequacy of the United Nations at two levels, which should be a matter of concern for the Organisation.

C. The Need for Integrated Security The desire for security integration—both national and international and including military threats as well as economic and social risks and abuses of individual safety or well being—is another characteristic of the contemporary shift from interstate security to societal or human security. It also extends, completes and corrects to a certain extent the broadening dimensions of security, as it aims to give back to security the homogeneity that such diversification could subtract from it. This is in part an academic, even militant debate, kept alive by NGOs and taken up by certain states that are keen to assume a normative posture in international relations for lack of sufficient political and military clout to play an individual role. There is also an increasing need for security emanating from democratic societies and states, and this need tends to inform state behaviour, especially in the European Union. This represents a fundamental change within the EU framework, one that has rallied the big states and could soon constitute the minimal core of European foreign policy in the face of America’s stated desire to control the means of conventional force. The European Union supports multilateralism and international institutions, especially the United Nations, and promotes the respect of international law within its framework; it favours in all circumstances a political and peaceful approach instead of using military options. This need thus cannot be swept aside, even though for the time being the means to translate it into deeds other than purely legal ones are few, especially in the current climate of international mistrust. Yet beyond theory, one can already see more concrete applications of integrated security. Hence the complex nature of peace operations carried out under the aegis of the United Nations tends to define the civil and

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military dimensions, assigning to them broader political ambitions. Traditional peacekeeping operations were of a protective and modest nature, eg, a simple interposition after the declaration of a ceasefire between belligerent parties, be they states or factions. Today, peacekeeping operations are infinitely more complex, and many seem to make not only a functional but also an institutional distinction between military and civil. Hard security is ensured by multinational forces outside the United Nations even though they are authorised by the Organisation. Soft security, or the management and reconstruction of effective mechanisms of local public and/or national authorities and the reconstitution of harmonious civil society, comes under civil missions carried out under the responsibility of the United Nations and by its agents and partners, other international institutions and NGOs. In reality, this is very much an integrated approach, for the operations have holistic objectives, achieved through composite means. The approach takes into consideration the military dimension of security as well as the different aspects of the civil dimension, whether political, economic, social, cultural, legal and judicial, or collective and individual. On the one hand, it is the result of a corrective dimension, being the product of a conflict that has ended; and on the other hand, it participates in the preventive dimension, insofar as the restoration of structural peace helps to prevent new conflicts). Finally, the steady shift from needs to responses shows that on the one hand security in all its dimensions remains very much the problem and major need of international society, and on the other hand, states remain at the heart of the process of establishing and maintaining security. They have to act collectively; they have to dispose of varied instruments and partners, including nongovernmental actors and international institutions. While they are more often than not at the source of the problem through their actions or deficiencies, in the ultimate analysis it is to states that one turns to correct dangerous situations. Better still: solutions always involve efforts to pacify, strengthen, reconstruct and regulate states. Contemporary international society, both in its structure and dynamic, remains in the foreseeable future a society of states. Evidently, the differences between states are considerable, but in the realm of security, these differences get narrowed down to merely the extent to which a state is willing and capable of contributing to a collective enterprise, and to whether the state prefers this enterprise to be undertaken in an institutional context (ie, through the United Nations) or on a one-off basis (ie, through ad hoc coalitions of the willing).

II. UN Reponses to the Demand for Security First, we will examine the role of the various partners involved in responses to the demand for security. States occupy in every respect a central position, but they can have the support of nongovernmental actors and often

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rely on the means and mechanisms of international organisations, the United Nations in particular. Next, we will take up again the functional approach that has guided our study so far and make successive distinctions between preventive responses, corrective responses (with particular attention to the use of international coercion and even armed force) and curative responses, which set out to achieve the peaceful and sustainable reconstruction of the international order.

A. Security Partners i. States Responses to the need for security depend principally on states, first because they alone have the necessary material, financial and human means and second because solutions always involve the construction or reconstruction of stable states; the state model has not in any way become outmoded in international society. Besides, the UN Charter is based clearly on the predominance of the Member States within it. In fact, the Charter was designed to ensure their protection on the one hand and their cooperation on the other. It is thus pointless to bring them into conflict with each other. The theoretical contradiction that some wish to establish between a sovereign state and its international obligations is equally futile, since sovereignty is only a set of legal jurisdictions mutually recognised by the states and guaranteed by the Organisation—but such sovereignty has to give precedence to all international obligations, irrespective of their source, as recognised by international jurisprudence. At the same time, sovereignty is a principle of legitimacy held only by states in international society. They are nonetheless subject to certain conditions with respect to the Charter, though we tend to forget this sometimes. Indeed, Article 4 of the Charter stipulates that ‘Membership in the United Nations is open to all other peace-loving states which accept the obligations contained in the present Charter and, in the judgment of the Organisation, are able and willing to carry out these obligations.’ Apart from guaranteeing states monopoly of membership, this provision may be wider in scope than merely a condition for membership, which for all practical purposes is binding. It may be seen as the basis for the United Nations to control the legitimacy of states in accordance with a dual set of criteria: consistency of behaviour, ie, willingness to respect commitments; and capacity, ie, the concrete prospect of states fulfilling their commitments. Article 4 could thus pave the way to suspend to some extent the status and privileges of states that violate their commitments or show themselves incapable of respecting them, for example, on account of being in a situation of crisis or because of the temporary or permanent incapacity of public authorities. One could thus define the objective status of a rogue state on the one hand and a failed state

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on the other: to be an acceptable partner, a state still needs to fulfil certain conditions. We can see the consequences that can be drawn from this with respect to responses called for by situations that endanger widened international security, states that threaten other states or whose failure causes international disorder. Sovereignty should not be considered an absolute privilege but the recognition by international society of the capacity of a political entity to ensure a certain number of activities and functions. The universality of the United Nations is vital in this respect. The setting up of the International Criminal Court (ICC) by the Rome Statute was a step in this direction, as it anticipated the loss of immunity of authorities responsible for certain international crimes. The Charter offers a much more comprehensive and flexible method of identifying states that are in some way either incapable or unworthy and would thus lose the benefit of sovereignty. In such a scheme of things, the distinction between domestic and international issues tends to get effaced: failed states obliterate the dividing line. Also, there would also no longer be any obstacle to humanitarian intervention, even interference, since the sovereignty of a state could be suspended until the normal conditions for the exercise of its jurisdiction are restored. Certainly, one may consider this function of the UN to be useless, if not dangerous. It is useless in the face of state failure, since it might aggravate the situation by affecting the state’s official international status. But it does have the advantage of clearly investing international society with the responsibilities of the state and facilitating at the same time the search for solutions within the framework of a kind of provisional international trusteeship. As for rogue states, this function of the UN could be dangerous by pushing them to the brink through international isolation and sanction. But it would only be one of a series of coercive measures. More importantly, if such a mechanism were to work and if it were to be applied to undeserving states in a predictable manner, it would undeniably be a considerable deterrent. This is entering into one of the possible roles of the United Nations, as it is well served by its universality. Until now, it has declined to act in this manner except in a few specific cases (South Africa, Zimbabwe, Yugoslavia and Libya to a certain extent) but without fixing any general criteria or propounding any doctrine. We need to carry out more detailed studies on the subject. ii. The United Nations The role of the United Nations we know is being increasingly challenged today. The precedents of Kosovo and Iraq indicate the possibility of acting outside the United Nations. The shadow of the League of Nations seems to hang over the United Nations, presaging the same sinister fate. The UN is criticised both for its political stalemates and for inadequate means. For the

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moment, the United States in particular does not seem disposed to view the United Nations as more than one of the tools in a large tool box, to be used in an opportunistic manner, without conferring on it any primacy, not even at the instrumental level. In the past, it was the small powers that questioned the United Nations; they saw it as a body dominated by large states and called for restoring the balance of powers in favour of the General Assembly, where they are in majority. The critique of the United States is of a more radical nature, more contradictory than reformist. It considers unilateralism and ad hoc coalitions (which are generally put together by it, around it and under its supervision) a more effective solution. However, this is short-sighted policy, as borne out by the deteriorating international perception of American policies even though September 11 generated an unprecedented wave of sympathy and solidarity in its favour. However, the United Nations runs three other types of risks. First, there is the risk of instrumentalisation, primarily by powerful states, in particular the most powerful among them, who are unwilling to submit to the constraints of multilateralism. Paradoxically, in spite of its spectacular character, this is not the most serious risk. Indeed, practice has shown, and the case of Iraq is exemplary in this respect, that instrumentalisation in favour of a single state does not work and that even the most powerful state lays itself open to serious setbacks if it acts in disregard of international rules. Next is the risk of competition: competition from other bodies, either institutional (NATO, G8 in Kosovo) or ad hoc (the military coalition in Afghanistan). This risk too is not as great as it appears, for one should reason in terms of comparative advantage and not the exclusion of the United Nations. Finally, there is the risk of the privatisation of solutions, as much on account of the coalition of NGOs as the might of transnational firms that tend to sidestep the United Nations. In the long run, this is perhaps the most serious risk, but it does not concern international institutions alone: states and their control of public space are equally affected. The response of the United Nation, as that of other international institutions, should be fundamentally identical to these various types of risks: it must display its capacity to channel international action in such a way that it becomes the organisational hub. It need not necessarily act as the direct administrator; but at the least it should ensure that it is the organisation within which complex strategies are drawn up involving multiple partners of all kinds, including states, NGOs, other international organisations, specialised and regional institutions. The Charter offers the entire gamut of options without requiring any reform. Simply, the reinforcement of the Secretariat would be useful, both in quantitative and qualitative terms. The quota system and opaque modes of recruiting personnel do not serve the United Nations well. Professionalism and staff motivation should be the sole criteria of recruitment. This may mean making competition a regular feature of the selection

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process and relaxing quotas, which should be regional rather than national. More specifically, the UN capacity for military analysis needs to be reinforced, and its vast experience in nation-building deserves wider recognition. Finally, we would do well to emphasise the usefulness for the UN of using subsidiary organisations that it has tested extensively in varied fields, often successfully. This highly flexible technique does away with the need for formal amendments and revisions, which are difficult if not impossible to carry out under any circumstance. In a changing context, using subsidiary organisations enables the United Nations to adapt its institutional responses without challenging the architecture and founding principles of the Charter. It will lead to the establishment of bodies that are appropriate and may be provisional, avoiding the hazards and the political preconditions to which attempts to reform the Charter may give rise. This could be considered a temporary solution until such time as the membership of the Security Council is increased. A similar method could well be used to start the regionalisation of the Council, which could set up on a consultative basis, though in an obligatory manner, regional bodies to study questions of interest to the region under consideration. This would strengthen its legitimacy without posing the currently insoluble problem of widening the Security Council, since the regional partners would be called upon to deliberate. They would take part in the bargain, become more responsible for the measures taken and be better disposed to contribute to their success without the final authority of the Council being called into question. iii. Nongovernmental Organisations Finally, as for NGOs, they are of two types. The first act as pressure groups; they seek to influence the priorities of international society and the rules governing it and more specifically to take a stand against the current modalities of globalisation. This can be seen from the pressure they brought to bear on the ICC during the Rome Conference and from their influence regarding the banning of anti-personnel mines at the Ottawa Convention and of cluster bombs at the Dublin Diplomatic Conference on Cluster Munitions. They seek a specific international legitimacy, claiming to embody a kind of spontaneous democracy and the general interest of humanity (whereas states are alleged to defend only their own narrow interests). The second type of NGOs is operational in nature; they participate in humanitarian actions and development on the ground, drawing their legitimacy from their action. Generally speaking, this sort of NGO is viewed favourably, at least in developing countries, even though at times this perception is altered by the involvement of some NGOs in terrorist networks. Though increasingly NGOs have become the official partners of international society, their situation warrants closer scrutiny.

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Indeed, it is desirable that NGOs active at the international level, especially those acting in liaison with the United Nations, are subject to closer scrutiny. Objective criteria should be defined to enable a process of authorisation. We know that Article 71 of the UN Charter authorises the Social and Economic Council to consult them, and they are called upon to express their views before an increasing number of international forums, including UN forums. It would be useful to develop international standards for the recognition of these NGOs, which would condition their capacity to intervene in such forums. They must be made transparent to ensure responsible partnerships: who are their members; what internal democratic procedures do they follow; where does their funding come from; what are their real activities? NGOs often ask states for greater accountability. In turn, they too must be made to follow accountability procedures at the international level. In this spirit, their activities within the framework of UN missions must always be evaluated a posteriori in order to measure their efficacy.

B. Different Types of Responses i. Preventive Responses A preventive response within the context of international security means anticipating needs before a crisis develops. Prevention assumes generally but not always the form of normative action. The adoption of common rules is always a response to a need, a problem, a latent conflict, and involves the reconciliation of opposing interests. Prevention concerns soft security as much as hard security. a. Soft Security First with respect to soft security, normative action—the conclusion of international agreements, including multilateral agreements—is largely outside the purview of the United Nations, except when the UN has a limited role, acting in some ways as a service provider. This is how major international conventions (eg, the Marrakech Agreements in the economic field, the Montego Bay Convention on the Law of the Sea and conventions on the environment) are negotiated directly by states. UN involvement, its sponsorship and the use of its services are merely an indication of the universal nature of these agreements. Exceptionally, the Generally Assembly may get involved in normative activity but never in a decisive manner, as was the case while modifying the Montego Bay Convention. Other methods are being developed at the regional level—the Helsinki Process and the protection of human rights—but in such cases it is the Charter that stands in as a set of universal principles rather than the United Nations that serves as an institutional reference point.

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However, there are operational actions that are a part of soft security and can put the United Nations directly into play. This is particularly true for preventive diplomacy, the theory of which had been formulated by Boutros Boutros-Ghali at the beginning of his term as Secretary-General in An Agenda for Peace. To be effective, it assumes that the UN has its own observation and warning system and need not wait for the matter to be referred to it by Member States nor be constrained by a deteriorating situation. We know such a system does not exist, and Member States do not favour it. Though hardly realistic in the short term, it could, however, reinforce significantly the Secretariat. Besides, evaluating preventive diplomacy is an extremely delicate task, for by definition its results are not visible and its contribution is difficult to measure: how does one establish the origin of non-events? At the economic level, the role of the G8 is more prominent than that of the United Nations. Is one then to consider the setting up of an Economic Security Council within the United Nations, perhaps through the transformation of the Economic and Social Council? The idea has been put forward occasionally. It deserves to be examined in greater depth and could be part of any reorientation of the UN role in this respect, one that has greatly diminished since the failure of the New International Economic Order. b. Hard Security With respect to hard security, preventive action again includes a dual dimension: normative and operational. Normative action includes, for example, agreements related to disarmament and arms control. The Disarmament Conference is not strictly speaking a UN body, even though it is linked to it, and its institutional mechanism resulted from a resolution of the General Assembly. True, the General Assembly directly adopted the text of Comprehensive Nuclear-Test-Ban Treaty (CTBT), but essentially direct state action is always required. Nonetheless, it may be recalled that the contemporary enterprise of disarmament was defined by an Extraordinary Session of the UN General Assembly on disarmament in 1978. Although the international situation has changed radically since then, this document, which outlines the priorities of the time, has yet to be modified. Today there appears to be a breakdown of the multilateral disarmament enterprise, which is no longer capable of negotiating new agreements and is poised precariously vis-à-vis the new priorities of international society— heightened risk of the proliferation of weapons of mass destruction to the benefit of nongovernmental actors, uncontrolled circulation of small arms, general crisis of confidence, etc. Undoubtedly a new Extraordinary Session would be useful in redefining the priorities of the enterprise in the current international context. We must also not forget Article 26 in Chapter V of the Charter, which deals with the general jurisdiction of the Security Council. Article 26

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entrusts the Council with the task of planning ‘the establishment of the system for the regulation of armaments’, which it must then submit to the Member States. To date, this Article has remained a dead letter. It clearly confers on the Council preventive jurisdiction in this respect, which should result in the adoption of standards proposed to Members. Doubtless, it has been considered that these proposals be formulated in collaboration with the Military Staff Committee, which as we know, has remained inoperative. Reactivating it might not be the best method, given its extremely restricted nature. But the Council could easily institute a subsidiary body for this purpose, with a widened membership to include the principal states concerned as well as a balanced geographical representation. This system could be complementary to the Disarmament Conference or act as an alternative to questions not on its agenda, as the case may be. It could well be a technique for the harmonisation of arms-producing states that tend towards the nonproliferation of missiles or restrictions on the export of sensitive material, technologies and products—Australia Group, the Missile Technology Control Regime and the Wassenaar Arrangement, in particular. Nonetheless, it is on the operational ground that the role of the United Nations can be reconsidered in the most direct terms. The disarmament enterprise assumes for example the success of the verification mechanisms, which depend mainly on the states party to the agreements. The United Nations, however, does not lack the necessary means. It has acquired great experience in the field of inspections, especially in Iraq, while the International Atomic Energy Agency (IAEA) can be at UN disposal by virtue of Chapter VII of the Charter. The interruption of inspections in Iraq does not in any way invalidate the results obtained, and the experience gained over the years remains intact. Consequently, we can think of setting up a body of international inspectors at the disposal of the Security Council, if the circumstances so require. We would thus have a tool that would allow us to ascertain, in an objective and multilateral manner, all violations of the disarmament agreements. The body would in particular be able to contribute to the reinforcement of the international fight against proliferation. In the same spirit but on a different basis, the initiatives to carry out inspections in maritime spaces, even under coercion, in order to combat the transportation of materials and equipment linked to proliferation and/or terrorism would stand to benefit by being provided for and organised with the authorisation of the Council. More specifically, one cannot forget the action of the Security Council against terrorism as it unfolded post-September 11 on the basis of Resolution 1373. Resolution 1373 was the interface between the preventive approach and corrective action, reacting as it did to terrorist acts that had already been committed. It is also preventive in nature, for it tends to foil the criminal manoeuvres of terrorist networks and make it more difficult for them to establish themselves. It has a normative dimension as well, insisting that

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Member States adopt in their internal legal orders sets of rules to fight against such networks. Resolution 1373 incidentally underscores the efficacy of the Council, as it was able to adapt itself very quickly to this new type of threat. It also emphasises the permanent validity of the Charter, since Chapter VII provides the necessary legal basis for fresh measures. There is no need at all to contemplate any reform in this respect; the main element is the political will of Members to prevent and fight against terrorism effectively, and the Council has the capacity to channel international action in this direction. ii. Corrective Responses A corrective response primarily concerns hard security, since it assumes an immediate threat to peace and security, calling for coercive responses that may include the use of armed force. It is clear that the idea of a UN army cannot be revived, even in the form provided for by Articles 43 and 45, which makes available to the Council national armed forces. The United Nations balks at the idea of lethal violence being used under its flag. It is inclined towards peace and thus committed to peace missions rather than warlike activities. The practice is to authorise the use of force and empower multinational forces to maintain peace through the use of armed force without direct UN authorisation. Even then, the drafting of Security Council resolutions is generally elliptic and implicit. In this context, two issues, informed by recent practice, deserve our attention: self-defence on the one hand and humanitarian intervention on the other. Finally, another form of coercive action that can be mentioned is the setting up of special criminal tribunals by the Council. Self-defence has long been considered a loophole in the Charter, and the discretionary and unregulated exploitation of this loophole by states has threatened to widen the scope of the right to use armed force in contradiction with the system of collective security established by the Charter. The recourse to self-defence could result in divesting the Council of its principal responsibility and a return to conventional interstate wars. Certainly, this risk has not disappeared; it exists the moment the Council is not in a position to exercise its responsibilities—which it can always do to substitute its action for that of states acting outside it. But Resolution 1368, adopted in the aftermath of September 11, constitutes from this point of view a major innovation, one that is positive for the Council. It is important from three points of view: self-defence is not exercised solely against armed aggressions committed by states; Resolution 1368 also allows the Council to authorise Member States to use armed force for their own benefit; and it invests the Council with very wide powers. Traditionally, it was thought that self-defence should be exercised in case of armed aggression by states or under the immediate threat of such aggression (preventive self-defence). Resolution 1368, however, recognised

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that the United States faced an instance of legitimate self-defence in the wake of the September 11 attacks, which were neither at the hands of a state nor the result of armed force in the conventional sense of the term but rather a case of objects used as weapons. The Council’s recognition of these facts respected fully Article 51, which governs self-defence. Article 51 does not state that armed aggression can be undertaken by only states, thereby enabling the use of self-defence against scattered terrorist networks without any specific territorial base. The fact that in this case a state, namely Afghanistan, was attacked because it was the base where these acts of armed aggression were planned and a safe haven for such networks does not change the situation. Here again, the Charter has displayed its flexibility and capacity to adapt immediately to circumstances unforeseen by its authors. It was also traditionally customary to consider that invoking self-defence was tantamount to sideling the Council, even the United Nations as a whole, since Article 51 lays down the precedence of self-defence over the entire Charter: ‘Nothing in the present Charter shall impair the inherent right of individual or collective self-defence’—which means that this right is fundamental and imprescriptible, ranking higher than the Charter itself. Consequently, every Member State is empowered to define the circumstances that justify the exercise of this right, as Article 51 sets aside in particular Article 39, which calls for the prior definition of such circumstances by the Council. In this case, however, Article 51 enabled the Council to invest the Member States cooperating with the United States with the right to use armed force. As a result, it placed under its control the exercise of self-defence, without, however, taking any measures of a military nature. It was thus legally and politically at the heart of the action, although it did not itself use force. In this way, it reintegrated self-defence into collective security and ironed out any possible contradiction between the two. Finally, the Council did not remain apathetic, since by recognising the situation as one of self-defence, it was obliged to take a series of coercive measures with Resolution 1373, which, though of a non-military nature, were designed to fight against terrorism in both a corrective and a preventive manner. These measures were universal in their scope and concerned all Member States by obliging them to take various domestic civil measures individually and to cooperate with each other under the control of the Council, thus allowing the identification and denunciation of states that did not fulfil their obligations. In other words, the opening of self-defence enables the Council to decide on all appropriate measures without any limitations in accordance with the terms of Article 51 (‘any such action it deems necessary in order to maintain or restore international peace and security’). It can thus exercise in an indefinite manner a jurisdiction that is as normative as operational. By its post-September reaction, the Council is inviting us to a fresh interpretation of Article 51, one is that much more favourable to its own powers.

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The theme of humanitarian intervention has gained currency since the NATO action against Serbia on account of its conduct in Kosovo—an armed operation that did not have the authorisation of the Security Council and is still often considered lacking in international legitimacy. The legal situation in this case is somewhat similar to that of the Anglo-American action against Iraq, which too was not based on any specific authorisation for the use of force but claimed to implement previous resolutions. However, the motivation to intervene in Kosovo was radically different; there was a genuine concern to protect the civilian population from the systematic exactions of the Serbian militia backed by the central government. This could have been justified by referring to humanitarian intervention, but not much was done in this direction. Humanitarian intervention is different from ‘humanitarian interference’ in that it is based on coercive means and brings states into play directly, whereas humanitarian interference is of a civil nature and is carried out through NGOs. One could have seized this opportunity to formulate a doctrine for such interventions and shown through an analysis of the Charter, especially Article 2§4, that it is not contrary to the customary regulation provided therein. Indeed, its purpose is not to call into question the territorial integrity or political independence of a state, nor is it contrary to the objectives of the United Nations. It could also be argued that a state which does not respect humanitarian law with respect to its own population should cease to enjoy the protection accorded to it by the Charter because it is not a peaceful state and does not respect its fundamental obligations. This would have given useful content to Article 4 of the Charter, as we have already pointed out. Certainly such an intervention should remain subject to objective criteria, observed independently, like the seriousness and systematic nature of the violations of humanitarian law, involving either the participation or the complicity or the failure of the state authorities, and their refusal to put an end to these violations following a formal international notice. The Evans-Sahnoun Report on ‘the responsibility to protect’ embarks, however, on a different path, as it does not rule out that this type of intervention can constitute an autonomous right of Member States, independent of any authorisation by the Security Council or even the General Assembly on the basis of the Uniting for Peace Resolution. But subordinating it in this way to institutional authorisation amounts to reintegrating it into the common law of international security, since the Council is always free to describe such violations as a threat to peace and authorise military action to make them stop, whether or not the concept of humanitarian intervention is referred to. Other suggestions tend to exclude the right to veto of the permanent members when faced with situations of this kind so as to make such interventions easier. But it is hard to conceive of permanent members giving up their veto rights or carving it up all the more so as the initial description of the situation is a substantive issue to which the veto is applicable.

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Given that civilian massacres are a recurrent feature in several parts of the world and that state authorities are often involved, it would be good practice to set up enquiry commissions more frequently to establish the facts in such circumstances and submit public reports to the Security Council on the basis of which it could proceed. In case of an absolute emergency and in keeping with the logic of self-defence, the Security Council could also recognise that states have, on a voluntary basis, the right to act to put an end to such exactions, after serving notice to the state concerned, and that they must report their motives and the components of their actions to the Security Council under the same conditions as for self-defence. There is little ground to be apprehensive about such a method resulting in the illegitimate use of armed force, for in this case ignorance, indifference and inaction are much more to be feared than premature or excessive action. Such actions will serve far more the purposes and principles of the Charter than they will endanger international security. The establishment of Special Criminal Tribunals by the Security Council is in keeping with such scenarios, as their purpose is the repression of crimes perpetrated on the people. While such a system can bring relief by not allowing horrendous crimes to go unpunished, intervention is by definition too late. As such, such tribunals have very limited and purely retrospective corrective character. They could be described as lying somewhere between corrective and curative responses. Such a system may settle a debt to humanity—but only after having created the situation itself and allowing it to fester. Besides, we know the limitations of such prosecution, which more often than not affects only lower-ranking officials or gets bogged down in interminable proceedings (the Milosevic trial being a case in point). Nonetheless, Special Tribunals are preferable to the International Criminal Court, regardless of the fact that the United States accepts Special Tribunals and has helped in their establishment, whereas it rejects and opposes the ICC and refuses to let US nationals be tried by it. It has been mounting diplomatic pressure to this end and has even threatened the use of force. The preference for Special Tribunals can be considered from several points of view. First, these ad hoc tribunals set up by the Council on a caseby-case basis can adapt much better to the specificities of the conflict to be settled. Joint tribunals can be established to accommodate local laws, procedures and judges. Next, the jurisdiction of special courts, based as it is on Chapter VII of the Charter, is binding on all states and cannot be hampered by procedural difficulties such as, for instance, the handing over of the accused. In this respect, it benefits from the coercive authority of the Council. Such jurisdiction is also retroactive and can thus look into crimes from the very beginning. Finally, it has a potentially wider reach than that of the ICC, which does not specifically allow the prosecution of acts of terrorism.

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Accordingly, one could have hoped for the establishment of a Special International Tribunal in the aftermath of September 11 to judge the terrorist plots and later Iraq. In this way both those responsible for the atrocities committed under Saddam Hussein’s regime and the perpetrators of the increasingly lethal form of terrorism in the country to which the United Nations itself fell victim could be brought to task. iii. Curative Responses Curative responses are in the main the United Nations peace operations. The comprehensive term ‘peace operation’ seems preferable to the myriad classifications that rely on doctrinal rather than practical distinctions (including ‘peacekeeping’, ‘peace-making’, ‘peace-building’, ‘nation-building’, ‘peace enforcement’, etc) because the dividing line is blurred and can certainly evolve. The term ‘peace operation’ takes into account the flexible and necessarily empirical character of the process. We know the many vicissitudes these operations have gone through, especially in the former Yugoslavia and Somalia. The very principle on which they were carried out was immediately called into question by the United Nation, not caring to get discredited in actions without clear objectives, sufficient means and a specific mandate. The operations were, however, revived on a fresh basis. Schematically, one can distinguish between civil and military aspects. The tendency is to entrust or simply record the presence of multinational forces, which, though they have the authorisation of the Security Council, do not act under its flag or UN authority. Their capacity to use armed force is moreover reinforced. The civil aspect on the other hand is part of a mission directed by the UN. Should one attempt to codify these operations and think in general terms of their organisation and modalities? The Brahimi Report demonstrates the value of thinking along these lines. It emphasises the complexity of the task and the utility of having, for instance, a kind of ‘legal toolbox’ that could help put into place a mode of transitional management and a process for the reconstruction of autonomous local authorities after the collapse of a state system. The United Nations has a wealth of experience in this field, and the lessons drawn by experts from previous operations are also useful. But any codification of the operations would be illusory as they are by their very nature existential, required to adapt to the most diverse of scenarios. Moreover, the work of projecting and preparing the necessary means must also be carried out inside of Member States, who are called upon to contribute in accordance with their availability and means. Reflection or, better still, planning at the European level to put together the necessary resources and carry out joint actions would certainly be a useful exercise. Recent practice, however, shows that the United Nations remains the sole organisational hub for such operations. It alone has the necessary legitimacy

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to authorise multilateral action that will be accepted by all the parties concerned. It alone has the experience and the intellectual and administrative tools to coordinate the multiple partners that take part in the operation— states, NGOs, specialised institutions and possibly regional institutions. The dangerous situation in Iraq is counter-proof of this. At the military level, an occupying regime quickly becomes intolerable for the population concerned; it is tolerated more than accepted by international society; and occupying forces themselves often find it difficult to justify. Moreover, the likelihood that occupation will result in basic political settlement is very small. At the civilian level, wanting to restrict the United Nations to a humanitarian role puts the UN in an awkward situation, transforming it into a kind of NGO and putting the members of the mission in a position of permanent vulnerability: if occupying forces guarantee the security of mission members, the mission members are perceived as instruments of the occupying forces; on the other hand, if the occupying forces do not guarantee their security, mission members are likely to become targets for all those fighting against the occupation.

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17 The UN Security Council: Blockage, Renewal, Future*

B

LOCKAGE AND RENEWAL—or renewal and blockage—constitutes a pattern of stop-and-go with which the United Nations Security Council has become familiar since its founding. In this respect, the crisis triggered by the Iraq war represents nothing new. Nor is there anything particularly novel about the US approach to the Council, in view of the longstanding American indifference to the wishes of other Council members in respect of, say, the Israel–Palestine issue. What was new about the Iraq crisis, however, was the depth, duration and very public nature of the bitter dispute between the United States and the United Kingdom on the one side, and France and Germany on the other. Also noteworthy was the degree to which the anti-Iraq interventionist coalition, subsequently transformed into an occupation force, showed itself willing not only to operate without Security Council approval but to do so in stark opposition to the Council. There had been prior occasions—for instance, during the Kosovo War of 1999—when armed interventions occurred without the Council’s blessing, but it was a different matter altogether to witness in March 2003 a military operation being mounted in such direct defiance of a Council Resolution. For not only did Security Council Resolution 1441, issued in late 2002, fail to authorise any ‘regime change’ in Iraq, but it also made military operations against Saddam Hussein dependent upon a prior finding that Baghdad had violated this same Resolution— and such a finding, as we know, was never issued. Let us go beyond this in order to situate the Council in a larger historical, political and institutional context. The Security Council occupies a central position in the overall UN system; indeed, the United Nations is constructed around the Security Council, which is in turn constructed around its five permanent members (the United States, the United Kingdom, France, Russia, and China)—who construct their own internal relations around their veto rights. Though some might deplore this as an institutional defect in need of repair, in reality the veto right represents one of the founding principles of the UN Charter. This is to say that there is

* Previously published as Le Conseil de Sécurité: Blocage, renouveau et aveuir, (2004) 109 Pouvoirs 61–74.

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not now and never has been one United Nations Organization but rather several of them, or more specifically, several dimensions to the United Nations Organization. We can distinguish at least three UNs, sometimes operating not only apart from but also in opposition to each other: there is the UN of the General Assembly, which is the instrument of the small powers; there is the UN of the Secretariat, directed by the Secretary-General, who alone is able to speak for and act on behalf of the entire UN; and then there is the UN of the Security Council, which is to say, the UN of the great powers. The best word to characterise the quality of relations between these three UNs is one that is used occasionally to describe French domestic politics, namely ‘cohabitation’. To be sure, other UN entities exist, and the picture would be incomplete without their being in it: these make up the network of specialised institutions that serves as a kind of international public service such as UN Educational, Scientific and Cultural Organization (UNESCO), the World Food Programme (WFP), the World Health Organization (WHO) and even the legal arm of the UN, which includes the ICJ and other special tribunals set up by the Security Council. In this galaxy that is the UN, it is the Council that exerts by far the most powerful gravitational pull. But is it even truly an international organisation? Does it present anything more than just a facade of institutionality? Or is it fundamentally just a shifting and precarious coalition of the great powers, all acting in strict accordance with their own national interests and paying but slight heed to the heavy responsibility vested in them by the Charter— the maintenance of international peace and security? The answer has to be mixed. Yes, when the Council is able to function, its decisions certainly boast of an indisputable political legitimacy, as well as legal authority. On those occasions, it can and does exercise unchallenged supremacy over the entire international system, standing as the supreme juridical body able to lay down the law to all and sundry and to ensure that its edicts are obeyed. But when it cannot function as intended, ie, when it cannot muster a majority in support of action or when such action is frustrated by a veto-wielding member, then the story is very different. When so paralysed, it becomes a nonexistent political and legal body: it can neither decide nor prevent anything, and its silence opens the door to a variety of state behaviours, even some that directly counter the principles of the Charter itself. No matter how one views it, the Security Council stands out when measured against all other international entities, be they regional or global in nature. Its singularity does not reside only in the Council’s relative exclusiveness—containing a mere fifteen of the UN’s entire membership of 191 states (or less than eight per cent of the total)—but even more it is a function of the blatantly unequal status among Council members themselves. There are ten non-permanent members elected to two-year terms by the General Assembly; and by contrast, there are five privileged other members, the ‘P5’, permanently and individually named in the Charter—China, the

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United States, France, the United Kingdom and the USSR (subsequently Russia). While perhaps not designated as untouchable by the Charter, they are at least well protected against any possible change, for they have not only permanent Council membership but also the unique Charter-based veto right. As a result, any one of the P5 may of its own volition block any resolution with which it happens to disagree, including ones that affect its interests directly. All this is to say that on the one hand, the P5 stand above the Charter itself—given that they cannot be excluded from decisionmaking except as they agree to be—while on the other, they hold it in their power to render the Charter a dead letter. In light of this, it is not difficult to understand why there should today be so much discontent voiced against the makeup and functioning of the Council. The surprise, though, is not so much in the numerous obstacles impairing the Council’s functioning but rather that it can function at all. And yet, it works. It certainly does not perfectly fulfil the missions ascribed to it in the Charter; but it would be hard to argue that it functions more poorly than any number of other international organisations. And even though the Council was indubitably wounded by the Iraq crisis, can anyone seriously maintain that it absorbed more damage from that controversy than either NATO or the European Union? The rule of thumb is and remains: never overestimate the capability of any international institution. By definition, international organisations are the servants of the states that bring them into existence. And while the organisations—and the decisions that are issued therein—do benefit from an unquestioned legal cachet, it is another matter altogether when it comes to political status. To understand why things happen politically, we have to turn to the Member States themselves. Therefore when we consider that the Council has always been an instrument of its membership, we are struck by its ability to survive in the face of all that besets it and in doing so, preserve intact both its competencies and its potential for action. We might even go further: apart from its capacity simply to survive, the Council has made some progress in streamlining certain areas of its operations and has even shown an ability to adapt successfully to unforeseen circumstances. So by all means, let the judging of the Council’s utility and legitimacy continue, but let it be done with the fullest regard for both sides of the story, always keeping in mind its past successes, as well as those that might still lie in the future.

I. The Security Council on Trial If we follow closely the various accusations brought to bear against it, the Security Council is criticised not only for failing with regards to its primary mission of safeguarding international peace and security but also for its very existence and makeup, which is an institutional problem of the deepest order. The reproaches come at it from a range of critics and perspectives, and while

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these do not necessarily converge on all points, they do produce the cumulative effect of damaging the Council’s image, thereby calling into serious question its capacity as well as its decisions. Several broad themes dominate the critique. The Council has a defective structure, and its structural defects stem from poor conception upon its creation. As such, the Council is incapable of taking decisions, or at least useful decisions, because it is paralysed by the veto. Even when it is able to reach a decision, the Council lacks the means of enforcing its resolutions. Finally, whether it acts or not, its behaviour always suffers from arbitrariness, with too much whimsical discrimination between cases as well as states, over which there exists no means of control. These charges are certainly not without basis. They warrant close examination, though it means putting them into context. For when we do contextualise matters, it becomes obvious that rather than being directed primarily at the Council per se, the charges really are aimed at the Council Member States as they make the Council live and breathe. Let us take the criticisms in turn.

A. An Entity Poorly Structured and Poorly Conceived? This criticism is raised in the first instance because of the Council’s size. It is maintained that an organ with only fifteen members can hardly be capable of reflecting, much less representing, the manifest dimensions of the international society it is supposed to serve, and at the very least the size of the Council needs to be increased in keeping with the fourfold rise in Member States in the United Nations since its inception in 1945. Instead, the Council has only seen its non-permanent membership increase from six to ten (in 1965); and this has had the effect of making it even more restrictive—and thus to its critics, an even more illegitimate body than when originally conceived. It has therefore been proposed to reform the Council substantially by increasing its non-permanent membership, for example to fifteen, so as to incorporate more points of view and thereby generate better, more legitimate decisions. This is a problem for any kind of organisation with limited membership, as such restrictions invoke a degree of frustration and distrust from those who the members represent, but who are unable to affect their decisions. The response to this suggestion is twofold. First, it is not true that all UN members are actively seeking greater participation in decision-making, especially when the decisions to be made are difficult and can expose those making them to pressure from the Council’s more powerful members. Second, the larger the membership, the more difficult and complicated decision-making becomes—a consideration that brings us back to the question of how many permanent members there should be. It is said that the P5 do not represent the great powers of today. This critique is especially aimed at France and the United Kingdom, whose

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presence among the P5 has the additional drawback of exaggerating the relative weight of Europe in world affairs. It is a criticism that may someday also be brought to bear against Russian membership. Should we therefore not just replace the French and British by a joint European Union membership on the P5? Other than the unprecedented challenge that would be posed by admitting to membership an international organisation rather than a state, it has to be recognised that the EU simply does not possess either the capacity or the political solidarity to fulfil membership requirements. Adding to the P5 both Germany and Japan seems like a good idea to many, but doing so would not just increase the relative weight of Europe on the Council but also enhance the presence of the West more generally. It would be necessary as well to add Member States from continents that currently are either unrepresented or underrepresented, such as Africa, Latin America and Asia. But no consensus exists as to who those ‘other’ candidates for P5 membership should be, either in terms of their number or of their identity. Names of candidate Member States include, among others, South Africa, Brazil and India—but every specific ‘nominee’ raises obstacles and sparks competition, such that the process of reform itself triggers unparalleled discord, regarding both how big the permanent membership should be and who should comprise it. In a word, Security Council reform will not happen. It will continue to be a topic that generates studies and debates, but at least for the foreseeable future, it has no prospect of being realised, and this not least because to bring it about would require the approval of the current permanent membership. These latter might talk the talk of reform, but none of them wants to walk the walk. Is it even true that the Council is in need of reform? Is the absence of reform really what keeps it from working more efficiently? Recent experience suggests the answer is no. The Council has been able to launch useful initiatives in the face of the most trying circumstances. It has already adapted its practices to reflect new equilibriums in international politics, and it has at its disposal the institutional means to enhance its functioning (a point to which we return below). Most importantly, the impetus for reform is aimed at the very organisational principle of the Council itself, constituting a revolutionary initiative the aim of which is the Council’s destruction rather than consolidation. For the Council was conceived on the basis of the principle of efficiency, not representativeness. It enshrined a collective hegemony on matters relating to peace and security—not some illusory form of representative ‘international democracy’. Hence its membership could include nondemocratic regimes as well as be reflective of demographic inequalities. That is why to change the founding principle of the Council would be tantamount to changing the security system, in effect emphasising political negotiation rather than operational, and eventually coercive, action. In short, this kind of ‘reform’ would weaken the Council rather than strengthen it.

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B. Paralysed by the Veto? As is well known, the veto has been exercised extensively by all P5 members, even if in a decidedly unequal fashion, with the Soviet Union being the hands-down champion at blocking resolutions. It is not even necessary that the veto be wielded, for the simple threat to use it can be a deterring factor in many instances. The veto right does indeed look suspect and might legitimately be open to criticism on two counts: Council efficiency and the degree of representation carried by a veto. As to the first of these, it is beyond question that the veto constitutes an impediment to the Council’s ability to take decisions, such that permanent members often refrain from acting in cases in which intervention would go against their interests, no matter the threat that inaction itself might pose to international security. As far as representation, how can it be acceptable that the P5 alone should enjoy the exorbitant privilege of holding the Council hostage to their desires while simultaneously placing them above the Charter? The case against the Council in these two respects seems clear-cut. The verdict must be equally apparent, and it is one that goes against the principle of collective solidarity at the heart of the United Nations. But the case for the prosecution is founded upon a pair of fallacious assumptions, namely that Member States really are inspired by the goal of collective security (‘all for one, one for all’) and that they have committed themselves to subordinating or at least accommodating their own national interests to the dictates of the Charter. But the veto right betrays this, for it affirms the supremacy of the national interests of a few over the whole. Despite the undeniable strength of the evidence mustered above, a more profound reflection on these matters can lead to a radically different conclusion. Not only is the Council not destroyed by the veto right, but it is actually saved by it. What would happen if the veto right did not exist? In such cases, it would be possible for a majority on the Council to impose its will on a minority. But this imposition would carry a hefty price tag: members in the minority could not be expected to accept their fate without reacting, with the likely result being an aggravation not a resolution of the crisis before the Council. The exact opposite of what was intended would be the result, with recourse to armed force becoming likely if not inevitable. This could pit permanent member against permanent member, with the probable outcome being the destruction of the Charter. Absolutely nothing would prevent a recalcitrant member quitting the UN, which would lead to the demise of the Council itself. Seen in this light, the veto right emerges as a way of safeguarding both collective security and the Council. Each may be put on the shelf for the present, but both retain great potential for the future, something that the history of the UN has demonstrated. History also shows that the veto right was a necessary condition of the Charter’s adop-

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tion in the first place; at Yalta, it was the only question relating to the future world organisation about which the Big Three evinced a genuine interest. Put differently, we can say that if there had been no veto right, there would have been no United Nations. Subsequently, the other eventual members of what would become the P5 demanded the same right for themselves.

C. An Entity Unable to Implement Its Decisions? Here the argument becomes dependent upon the Council’s actual ability to make decisions. As is known, such decisions can be of two kinds. The Council can take coercive measures that stop short of authorising the use of force—eg, embargoes, blockades and other forms of trade restrictions against recalcitrant states. Such measures are often, though wrongly, called ‘sanctions’. It is improper to use this term because sanctions have a disciplinary or penal significance that does not correspond very well with the spirit of such coercive measures as envisioned by the Council. Sanctions comprise measures aimed at the execution of constabulary and other constraining functions, intended to assure the maintenance or restoration of peace; they are not penalties founded upon violations of law, assessed as a result of contested proceedings. The Council can also take a second kind of decision, leading to the use of armed force, in military conflict waged under the aegis of the United Nations. In either case, and most spectacularly in the second instance, the Council possesses no means of enforcing its coercive decisions; it remains dependent upon the good will of Member States to do so. The Council’s most apparent shortcoming is hence the absence of any autonomous military capability. The most it can do is authorise states to act in its name when they take up arms, or to act on their own accord under UN authorisation. In fact, this says more about the nature of the Security Council itself than it define its weaknesses. It is true that the Council is weak militarily and must therefore rely upon Member States. But it is able to concentrate the collective pressure of its permanent members by strengthening them through the legitimacy and authority of its resolutions, under whose obligation or protection they may act. A UN standing army with the Council’s authority and under the command of a military staff was originally envisioned. This never became a reality and never really could have without transforming the United Nations into a sort of super-state, which was never the intention of the founding Charter members. The creation of a UN army was only really ever an option offered by the Charter, not an obligation. The current situation is the result of the nature of collective security itself, which is a hybrid system, rather than of the contentions between permanent members. States retain their own military forces and remain the first and principle providers of their own security—as is recognised in the natural right to legitimate self-defence. Quite simply, Members renounce the use of force

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outside of the hypotheses indicated by the Charter and pledge to give their assistance to the Council upon request. The military weakness of the Council has not stopped it from directing and deploying peace operations, which have evolved significantly in the depth and breadth of their scope. They continue to operate in the most varied regions, with Africa being the most common host. Activities range from ceasefire monitoring to state reconstruction and humanitarian assistance, assuming a provisional administrative role over entire states. There have certainly been failed operations, or at least some that have gotten bogged down at an impasse between opposing forces. Yet peace operations remain indispensable if always perfectible, and they have a long, unparalleled history within the Security Council. It is true that as soon as the Council is faced with the recourse to armed force, it lacks the necessary means to do so and must call upon Member States to constitute a multinational force for action. Should we therefore conclude that the Council is nothing more than a super-NGO with the regular cooperation of peacekeeping forces? That would be excessive, as it directs, under the management of the Secretary-General, the entire scope of the civil process with its political, administrative and legal instruments. As such, it should be viewed as a redistribution of tasks between regularly cooperating partners.

D. An Inevitably Despotic Body? An even stronger case can be made against the Council regarding its capacity to shape world affairs. On the one hand, it refrains from acting in certain situations where peace and security are clearly affected. It fails either to execute certain resolutions (as evidenced by the conflicts over the censure of Israel) or simply to reach decisions. Are not certain vetoes ‘unreasonable’, to use the term applied by Tony Blair to France’s position on the Iraq war? On the other hand, the Council sometimes takes action not authorised by the Charter when confronting situations that could be dealt with by other means. Truth be told, it sins more by inaction than by excess of zeal. Faulty decisions, however, are more instructive with respect to the charge of arbitrariness than are the nondecisions. It was possible to contest, for example, the legitimacy of the right to resort to force implicitly given by Resolution 678 to the ‘states cooperating with Kuwait’, or the recognition of the right of defence accorded the United States after September 11th by Resolution 1368 (2001). Such complaints emanate for the most part from small states, those in any event who are non-permanent members, or from juridical doctrine. Should judicial control over the legality of the Council’s decisions therefore be envisaged? The Council’s defence of itself and of its practice in this matter stems once again from its nature. It is a political entity that makes political decisions motivated by political concerns and with political objectives. Its mission is

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not to ensure the respect of law but rather to maintain or restore international peace and security, which is quite another matter. It is subject to the Charter certainly, but it exercises, within this broadly defined framework, a fundamentally discretionary power. Who could control it? Certainly not the General Assembly, from which it is independent. The International Court of Justice at The Hague? This Court has until now limited its consideration of the legitimacy of the resolutions to reviewing general criteria—whether the president of the Council declared their adoption or whether they fall within the aims of the organisation. It does not claim to be able to substitute its decision for that of the members. Could it go further? Some think that it should, but doing so would run a double risk. First, the Council would be paralysed yet again—and it seems unlikely that the Court would be able to come to its assistance. Secondly, a new institutional crisis would be created in the likely event that the Council ignores the Court’s decision, especially if the latter were merely responding to a reference for advice. It is the members of the Security Council themselves who, through their veto right, exercise real control over the entity and its actions. Belonging to the realm of politics, the logic of the Council is that of a balance of power, as was shown by the recent French resistance, in the name of the law, to American claims.

II. The Future of the Security Council These criticisms and debates tell us more about the nature of the Council than they help us find practical solutions to the problem of how to change its present form. We will no doubt have to live with its present incarnation for some time to come. The Council is a reflection of our international society, an instrument used by the great powers, not a guardian of international law and justice. This assessment of its nature should be accepted rather than rejected, given that the Council has shown itself capable of adapting within the context of a Charter that will not be modified any time soon. While there is no doubt that its powers could be enhanced by the widely desired addition of countries such as Germany and Japan as permanent members, such additions would be conditional upon other modifications that are unlikely to occur in the near future. The Council must therefore look to the development of its practices as a means of finding solutions, however imperfect, to the evolving demands of international security. We will not re-examine peacekeeping operations, which have been for several decades the essential instrument of the Security Council, employed with varying success in the most diverse circumstances and arenas. We will focus instead on identifying the elements of the Council’s adaptation in three contexts—institutional, functional and thematic.

A. The Institutional Dynamic The dynamic of the Council institution has to a certain extent counterbalanced the impossibility of its enlargement, perhaps even to the point of

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rendering the latter unnecessary. Certain aspects of this dynamic arise from the Council’s nature, while others stem from its relations with other international institutions or bodies. With respect to the Council’s basic nature, it will be recalled that the People’s Republic of China in 1971 was able to replace Taiwan (the Republic of China), and Russia in 1992 was able to assume the participation of the former USSR, which was specifically named in the Charter. The relaxation of rules concerning the veto should also be mentioned: the abstention or absence of a permanent member is not considered a negative vote, despite the original text of the Charter. Finally, we should note the importance of the Council’s ability, recognised by the Charter, to create subsidiary bodies to assist it in its functions. These features have enabled the Council, even and especially in the absence of amendments to the Charter, to adapt its institutional framework and to develop instruments capable of adjusting to the requirements of particular missions. For this reason, peacekeeping operations are subsidiary bodies of the Council, as were the special penal tribunals for Rwanda and the former Yugoslavia. These are integrated bodies (international) that are not subject to the orders of Member States. They also include intergovernmental bodies, such as committees set up to review on an ongoing basis the application of certain resolutions. The Council’s relations with other agencies or entities can develop either at the time of decision-making or of implementation. The Council, while retaining sole power over an issue, may decide to hold a pre-decisionmaking audience of all members of the General Assembly, as it did with respect to the Iraq war. It may also decide to adopt the stance of another body, such as the G8, whose members include Germany and Japan, as was the case with Resolution 1244 in 1999 with respect to Kosovo. The implementation of decisions is often done in concert with regional organisations, where institutional authority over specialised entities or agencies of the United Nations can be exercised, as was the case with the International Atomic Energy Agency (IAEA) in the Iraq affair. The Council is often the organising pole of a group of partnerships that contribute to the elaboration, application and acceptance of the measures it has adopted. Would it be possible to further this approach, to have the Council create permanent subsidiary bodies, thereby compensating for the lack of a revision of its composition, or even representing a kind of preliminary trial, a period of probation? One can imagine a committee composed of a larger number of Member States than sit on the Council, which might include the recognised candidates for permanent membership. This Committee could have an advisory role, linking it to the decision-making process and thereby strengthening the political authority of the Council’s decisions. It might also have a variable composition, enabling the addition of the major states affected by regional crises at the time the Council holds debates concerning those crises. The advantage of such a formula would be an increased

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ability to respond to diverse claims; its disadvantage would be the resultant complexity and slowing down of the decision-making process. It would appear therefore to be feasible only on an ad hoc basis.

B. Functional Adjustments The Council’s specific functions and competencies are not defined in the Charter beyond the general conferring by Article 24 of the ‘primary responsibility for the maintenance of international peace and security’. Nor do the specific powers accorded to it elsewhere present it with a clear course of action. This reflects the concern that the Council, a political body, must be able to adjust to particular circumstances, to take special measures, to put in place customised regimes by definition limited to the particular circumstances they are meant to address. This alone can account for very diverse practices and an absence of rigorous doctrine, standards or norms for the Council’s actions. It is often only after the fact that one can detect any particular logic, of which the applicability in future circumstances would simply be impossible without significant changes. It is necessary to innovate permanently, as the precedent value of any action is perforce limited. With the benefit of hindsight, it nevertheless remains possible to distinguish three types of interventions by the Council that correspond roughly to an increasing level of mastery over situations. In any given case the Council might variously (and sometimes concomitantly, but in different areas): record a given situation, recognising it; authorise or empower Member States to act; or even organise the action itself, taking full control over it. This typology is obviously approximate, proposing criteria for analysis rather than encapsulating an ever-changing reality. It provides a scale by which we can measure the degree of control the Council is able to exert over a given situation, the options at its disposal and the way in which it must adapt. Recording is the lowest level of action. The Council does not issue a verdict as to the cause of any given situation, but it does take note of the consequences and in so doing renders it official—as, for example, Resolution 1244, which recorded the military action of NATO Member States in Kosovo, without approving it; and Resolution 1483 (2003), concerning the occupation regime in Iraq. The intermediary degree of action is that of authorisation—for example, Resolution 678, which implicitly authorised the use of force in the Gulf war of 1990–91; Resolution 1244, which authorised the deployment in Kosovo of a security force (KFOR), incorporating an important NATO element; and Resolution 1368, which authorised the United States to exercise its right of legitimate self-defence. The level of action consists in the Council’s planning and control of entire missions, veritable transformations of situations by the most varied of techniques: Resolution 687 (adopted in 1991 and renewed in 2002 by

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Resolution 1441), for example, created a complete regime for the disarmament of Iraq; Resolutions 827 (1993) and 955 (1994) provided for special penal tribunals; and Resolution 1373 created a complete and coercive regime aimed at preventing international terrorism. These examples demonstrate that while the Council can never entirely master a situation, it is by the same token never entirely without resources.

C. Thematic Adaptation The Charter’s imprecise formulation of the Council’s mandate, ‘primary responsibility for the maintenance of international peace and security’, offers the Council free rein in defining its objectives, its spheres of action and the methods of its interventions. This is a good thing. Had a more precise and complex definition of what is meant by ‘primary responsibility’— and especially by ‘peace’ and ‘international security’—been given, the Charter likely would have suffered the fate of other overly detailed texts, namely to be nullified even before coming into existence because they no longer correspond to the circumstances that gave rise to their creation. It is a well-known fact that brief and ambiguous legal texts, because they can be enriched and adapted through practice, are those that enjoy the greatest vitality and longevity. Three examples, all stemming directly or indirectly from the attacks of September 11th, show how the Council has been able to adapt its responsibility to unforeseen circumstances. The first is the recognition by Resolution 1368 of a situation giving rise to the exercise of legitimate self-defence by the United States. This right was traditionally recognised only in the case of armed aggression by another state. In fact, the Charter contains no language whatsoever relating to the issue. The recognition of the right in the face of terrorist acts, although unforeseen and surprising from a doctrinal standpoint, was in conformity with the Charter. The second example can be found in the struggle against international terrorism: with Resolution 1373, the Council put in place an ambitious and comprehensive program, covering dimensions appertaining to legislative, judicial, constabulary and customs authority, which effectively places the entire community of states under surveillance. While far from the letter and intentions of the Charter, it is clearly in the spirit of it—as made clear by the lack of objections to its passing. The third example arises in the campaign to counter the proliferation of weapons of mass destruction. Here too, the methods inspired by Resolution 1373 have the potential to be very effective, including even the ill-fated (during the Iraq affair) international corps of inspectors. But for all this to work well, it is first necessary to convince the United States to fall into line rather than opting to act preferentially with ad hoc coalitions, in which they can better control their partners, targets and methods. This observation brings us back to the current predicament of the Council, stemming from the US failure to work with it more constructively.

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Between 1945 and 1990, the Council adopted some 680 resolutions, and today the number of adoptions has swelled to more than 1500, including several dozen since the Iraq War. That is to say, the Council has adopted three times as many resolutions in fifteen years than it did in the previous 45 years. In no way can it be said to be ‘blocked’. But the US desire to absent itself from the constraints of collective decisions, itself a function of a bid to preserve its hegemony with all that this implies, does play a role somewhat analogous to that of the East–West conflict during earlier decades. This does not mean that the Council is any less important or effective. A demonstration a contrario can easily be supplied by looking at the difficulties encountered by the occupation regime in Iraq—difficulties that can be traced to the lack of international legitimacy, as well as to the inability of the occupiers to avail themselves of the know-how and institutional capacities of the Council in matters relating to peace settlements and to post-conflict reconstruction of states.

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18 In Praise of the Security Council*

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HE AIM HERE is not to describe the Security Council’s structure, nor to analyse its competencies and powers as provided by the Charter. The aim is to use a more functional than institutional logic in order to assess and evaluate whether this structure, with its competencies and powers, can effectively respond to current international security challenges. Among these numerous challenges, some concern real or potential threats to peace and security (international terrorism, proliferation of weapons of mass destruction (WMDs), failed states) while others have to do with the nature of responses—the capacity to develop, with the Security Council’s intervention, international coalitions that help prevent and manage such threats and, if necessary, take action against them. ‘With the Security Council’s intervention’—the expression itself means that the Security Council is just an empty shell by itself, or at least a channel ensuring consultation and convergence between Member States and bestowing on them the international authority that is indispensable for the universal acknowledgement of their collective decisions. Requests, responses—these are two logically different issues, although they may have overlapped historically, especially after September 11th, as the United States was at the heart of a movement calling the Security Council’s relevance into question. However, while the Security Council was kept considerably out of the circuit in the case of Iraq, it nonetheless continued to take action elsewhere, sometimes even at the behest of the United States. Moreover, we know that its reform process, the outcome of which still seems uncertain, relies on the joint consideration of these two central issues: the desirable structural changes to be made in the Security Council in order to enable it to better face the changing threats to international peace and security. Recalling that many believe that the Security Council and the Charter of which it is a part are at variance with the changing international context is rather trite. A coalition of World War II victors, based on a collective security mechanism that relies on the prevention and repression of interstate aggression, the body seems somewhat anachronistic. Not only have the * Previously published as ‘Eloge du Conseil de sécurité’ (2005) Annuaire français de relations internationales 76–88.

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threats to peace changed—and putting aside the fact that the Security Council has more often than not been unable to take effective action due to divisions among its permanent members—but its composition has also evolved, ie, the number and identity of its permanent members no longer correspond to the realities of power distribution and the capacity to take action at the international level. These two critiques, which are the ones most commonly relied upon by advocates of UN reform, are what we would like to, if not refute in principle, at least dispute with regard to their relevance. Whether reform is possible, whether the constraints and obstacles that have hindered it for almost fifteen years are or are not surmountable is not the issue: the future will soon decide that. Indeed, it would be a lazy way of evading the difficulty if we stopped at a presupposed impossibility and considered that the issue then had no substance and was mere wishful thinking. In fact, the problem is much more one of knowing whether reforms could introduce concrete functional changes into the Security Council, improve its practices and place it in a better position to fulfil its ‘primary responsibility’ with regard to international peace and security, which reformers do not propose to review again. Undoubtedly, advocates of reform—who, lest we forget, often include or at least align themselves with those seeking to eliminate the Council—consider that in all senses the Council has outlived its utility. The reasons they offer vary: in some American circles, the fact that there are states other than the United States that can exert influence through the Council is problematic; some would-be reformers protest that one state or another is absent from the Council; and others protest the fact that certain states are not permanent members. There are two currents underlying this push for eradication of the Security Council. The first is doctrinal and sometimes political and considers that the Charter imposes on the dominating power unbearable restrictions with regard to the recourse to armed force, which should be judged solely on the basis of national interests; in other words, the Security Council should neither hinder nor control use of armed force. The second, less openly acknowledged drive for reform consists of subverting the Security Council in the name of its supposed improvement and in order to avoid its obsolescence. Conversely, it seems that the Security Council in its present form is already endowed with all the means necessary to take action, or more precisely to serve as a framework for actions that its Member States wish to take and for the forums they control. In this regard, it is a unique and unprecedented body in international relations in human history. What are these means? There are two kinds. The first is both legal and symbolic in nature—the capacity to make decisions that are mandatory for all, decisions that may include the recourse to armed force with undisputed international legitimacy. The second is, on the basis of the Charter—ie, of a practically

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universal interstate treaty—to place an entire gamut of undefined means at the disposal of Member States, thereby enabling it and them to face all actual and virtual, traditional and unexpected security problems.

I. The Security Council: A Source of International Legitimacy The Security Council’s fundamental characteristic in this regard is to be an international institution and not just a mere de facto grouping between states and between some single states. This institution undoubtedly has some strange features. Not only does it include two categories of members with distinct legal powers, but moreover, the permanent members are designated by name in the Charter, such that the institution is in a way customised to the benefit of some of its component parts. Consequently, a number of states and analysts are tempted to believe that the Security Council is a pseudo-institution, really just a coalition of privileged states that have defined and guaranteed their privileges for themselves and to their own benefit. This is not a baseless criticism. Taking it to caricatural heights, some even compare the Security Council to the meeting of the ‘five families’ in The Godfather, who share their power and regulate their collective predominance when they are not in dispute with each other. The comparison is not new, as Saint Augustine already wondered what difference there was between a political power and a gang of criminals. But more seriously, it raises a problem with regard to the general conception of international relations and of the contrast between cynical, realistic and idealistic approaches—which we will look at later. Suffice to say at this stage that reformers do not call fundamentally into question the Security Council’s organising principle, since they merely wish to see their name added to the current list and in their turn be registered within the enchanted circle—that is, if being a permanent member were a source of enchantment.

A. Bases of Legitimacy: Decisions and Non-Decisions What is important with reference to international legitimacy—which could be defined as the perception that a given decision cannot be disputed on the basis of a law or any behavioural principles transcending it—is that Security Council resolutions are made in the name of the United Nations, a universal organisation. The Charter entrusts the Council with the power to act on behalf of its Members and to take decisions that are then binding upon each and all of them. There is no doubt that this symbolic legitimacy remains theoretical when it does not avail itself of its own means to impose its authority—and we know that the Security Council cannot use its own forces to ensure compliance with its decisions. Practice has shown, however, that

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few states dispute decisions aimed at them, that their dissent generally remains isolated and that the authority of relevant resolutions is accepted by the other states. When the Security Council has taken a decision—for instance, with Resolution 678 (1990) authorising the recourse to armed force against Iraq; with Resolution 687 (1991) establishing a coercive and verified disarmament regime for that country; or even with Resolution 1441 (2002) deciding on the renewal and strengthening of inspections in Iraq—no Member State has actually resisted. The situation is seen in different terms when the Security Council does not make decisions—when for a variety of reasons (lack of interest, lack of agreement) it abstains from intervening. What kind of legitimacy can such abstention produce? Why consider that the absence of decisions and lack of action by the Security Council must lead a state to abstain in turn? If it is in the interest of the state in question to act and is within its capacity to do so, and if it can take its own decisions politically and militarily, why should it worry about obtaining an agreement and getting a resolution adopted? Whereas other states cannot oppose such action and are not indispensable for it to succeed, why should anyone subordinate themselves to the official silence of an international body? That, for instance, is the problem raised by the military action taken by the coalition led by the United States against Iraq in 2003—armed action that bypassed any specific authorisation and defied the Security Council’s implicit opposition. Let us leave aside the American legal argument in this case, as well as the idea of authorisation stemming from preceding resolutions—both of which appeared almost unanimously opposed by UN members, as manifested in their public audiences before the Security Council prior to the military intervention. These Member States were of the opinion not only that a special resolution was necessary but furthermore that it was not desirable. International legitimacy was certainly lacking in the actions of the US-led coalition. There is no need to discuss at length the consequences of this absence of legitimacy. Even a militarily powerful coalition, not to speak of a purely individual action, is politically weakened if a very large majority of states feels there is an absence of legitimacy. Moreover, the success of such a military action is always assessed in political and not military terms. Therein lies one element of the distinction between force and power. Force is an expression of irresistible material means; power is the perception that these means do not offer recourse, and it is better to prevent or stop their use by accepting the wishes of those holding them. If we broaden the thesis, it brings us back to the distinction between the cynical, idealistic and realistic approaches in international relations, a triptych within whose framework many attitudes concerning security can be found. Cynics confuse force with power, without realising that the two notions are in fact more at odds with one another than similar. They therefore overestimate the effectiveness of military domination and often attempt

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to solve problems with brutal simplicity—in such a way that frequently, cynicism is the loser’s moral code. For instance, the Machiavellians were not the ones who achieved Italy’s unity. The idealists, on their side, reach the opposite results from the same confusion—they tend to object on principle to the use of armed force, which leads them either to bear the consequences of belligerent forces or to instigate the most violent conflict too late, as a result of misreading the deterrent effect of the credibility of the recourse to armed force. Realists consider that armed force is an ultimate recourse but should not be excluded, and the preventive virtues of a security mechanism rely on the concrete capacity to respond when challenged—in other words, force intervenes only if power has not been suitably understood, and then only in order to restore the perception of power. It could also be said that cynicism is the infantile syndrome of power, which places too much faith in the force of arms, whereas war is always to international relations what bleeding is to medicine—a primitive and unpredictable technique. Napoleon and William IIboth suffered bitterly from this experience—and even more so the countries in which they imposed their authority. It could well be believed that the UN Charter, by laying down in its Preamble that ‘armed force shall not be used, save in the common interest’ was intended to stamp this common insight into its text. However, we hear an entirely different discourse on the side of the United States, because national interest and purely internal decision-making methods prevail in their doctrine and in their practice with regard to the recourse to armed force. That is saying openly that the United States is not concerned about international legitimacy, whether it comes from the Security Council, the Charter or elsewhere. The sole world power will not be subject to common law; the ‘indispensable nation’ can dispense with the opinion of other nations. Nevertheless, the Security Council was initially an American idea, the product of the American conception of collective security. The idea was based not solely on the concern for availing of a militarily irresistible coalition in the face of a given attack but also on the desire to control and legitimise the recourse to armed force, to exclude ‘wars by choice’ in a way, by allowing only ‘imposed wars’—imposed by others—to subsist, and American history illustrates a general loathing vis-à-vis entering into war. The concern is for just wars, another term for legitimised wars, with the caveat that legitimisation stems not from a norm that each entity interprets for itself but from an international process of collective decision-making, which has predominated in the American tradition. This tradition has certainly suffered a lot of humiliations, both overt and implicit, but never until the Iraq affair had the contrary doctrine been asserted—and with so much clarity in the face of almost all-round protest. So should the United States henceforth be considered as first among rogue states?

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B. Unrivalled Legitimacy No doubt some American authors try to compensate for the lack of legitimacy with alternative or substitute international legitimacies. Hence, Robert Kagan in American Power and the Crisis of Legitimacy considers that unilateral action is never satisfactory, adding that the Security Council is not or no longer an adequate forum for legitimisation. According to him, institutional cooperation towards this end between the United States and Europe would be better through the Atlantic Alliance and the North Atlantic Treaty Organization (NATO) or any other kind of transatlantic link. The ensemble they make up is not only the primary axis of international security but also the guardian of common values, a source of international legitimacy. However, in other texts and even in the same work, Kagan observes that the United States and Europe are becoming increasingly distant from each other. He explains this by alluding to the well-known differences between Mars and Venus, which does not call for any lengthy explanation. The precedent set by Kosovo in 1999 naturally comes to mind. We know that at the time, NATO had provided multilateral cover to armed intervention by Alliance member countries, an intervention that the Security Council had neither decided upon nor authorised. But this did not stop the Security Council from being brought into the settlement process later. The Security Council’s act of recording the intervention’s outcome and consequences did not so much legitimise it as put it in brackets. However, no one disputed the legitimacy of Resolution 1244 (1999), which structured Kosovo’s provisional administration under the aegis of the Security Council, and likewise with the security force that was set up under its authorisation, with a large NATO component. Why could the same result not be achieved in Iraq after the elimination of Saddam Hussein’s regime and the country’s conquest by coalition troops? If legitimacy was lacking at the beginning, why could it not be restored—not so much retroactively but as a second phase in the process? All the more so as the United States also wants it: they did not intend to leave more than a limited role to the United Nations, but their actions have at least shown that they need UN sanction to legitimise the occupation and provisional regime. In both cases, once action was taken, no one tried to make the situation worse. Claiming responsibility as the logic behind their stance, everyone let the weapons act. Inter arma silent leges. (In time of armed conflict, laws fall mute.) However, there are considerable differences between the two situations that have not been overcome thus far. These differences are essentially due to the respective perceptions of the legitimacy of the two situations. First, in the case of Kosovo, there was transatlantic solidarity at the beginning, which was lacking in the case of Iraq. Second, the intervention in Kosovo that occurred without the Security Council’s authorisation could be challenged from the Charter’s viewpoint, but it was not directly contrary to

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any of the Security Council’s resolutions. The action in Iraq, however, was in contradiction to Resolution 1441, if only because it subordinated the recourse to force to prior findings about its violation by the Security Council and did not seek the regime’s elimination. Third, the settlement of the Kosovo case was followed by a ceasefire that was respected by all the parties concerned, while no ceasefire was able to prevail in Iraq, as tragically illustrated by the assassination of Sergio Vieira de Mello in August 2003. Fourth, the Security Council assumed responsibility in Kosovo, but responsibility for the situation in Iraq was never ascribed to the Security Council, even if it had wanted to claim it (which it apparently did not). The absence of initial legitimacy is thus sustained. From the outset, it has weighed heavily on the coalition’s intervention in Iraq. It could be surmounted only by another kind of legitimacy—an internally generated one that would be a fresh starting point for Iraq and thus make the issue of its origination moot. Such legitimacy could take the form of an electoral process, ensuring the rebirth of Iraqi sovereignty. It would have to be consolidated by internal recognition—the cessation of fighting, the end of attacks and the return to civil peace. Indeed, this assessment points to the extent of the negative consequences resulting from the lack of international legitimacy for the coalition’s action and the difficulty of replacing it by another source of legitimacy, whether international or internal. Comparison with the situation in Afghanistan, where action was legitimised by the Security Council from the outset, would be even more striking. The Security Council’s power of legitimisation clearly cannot be ignored. Seen from a symbolic perspective, this power too leads to decisive political consequences, given that political factors—starting with and beyond legal considerations—are deployed in the sphere of symbols.

II. The Security Council: Architect and Instrument The Security Council is an architect in the sense that it formulates plans, fixes schedules, distributes tasks between different ‘contractors’ and supervises execution. As we know, it does not itself have any equipment, nor does it necessarily have tools, but it designs the structure of whole endeavours and marks its plans with the seal of its authority. To do so, it cannot rely on any pre-established ‘operating procedure’ within either the Charter or any doctrine it may have imposed upon itself, nor on any ready-made plans for pre-determined categories of potential situations. However, it is sometimes criticised precisely for this fact, especially with regard to peacekeeping operations, which have some aspects that are sufficiently repetitive to be able to lend themselves to a sort of prior codification. Nonetheless, what is sometimes a disadvantage is also an advantage because the Security Council is not enclosed in a rigid framework and can adapt itself to each situation’s unique character.

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The Security Council is also an instrument—or rather a series of instruments—insofar as, apart from its legitimate institutional authority, it also places cooperation techniques and operational resources that it can control at the disposal of Member States. These techniques and resources include both its own administrative resources and those it can help bring together, such as state resources and the help of specialised institutions, regional organisations and nongovernmental organisations (NGOs). This is the case at the political level, for instance, when it takes decisions actually arrived at by the G8 and makes them its own (eg, Resolution 1244 regarding Kosovo); and at the operational level, for instance when it authorises multinational security forces (eg, the Kosovo Force (KFOR)). The fact that the Security Council alternates between its roles of architect and instrument illustrates the institution’s flexibility and adaptability. In fact, its adaptability is based on the logic of exigencies and responses, and also includes several types or levels of Security Council intervention.

A. The Logic of Exigencies, the Logic of Responses At first sight, the adaptability of the Security Council seems to be based more on the logic of response than on the logic of exigencies. In any given situation, it depends on the agreement and support of its Member States and cannot go beyond what they are willing to grant. Yet what they are willing to grant depends as much on the context of the problem concerned as on the problem itself, on what is in their interest and/or on the means available to them at that point in time. Therein lie a constraint upon the Council—and incidentally, it may be observed that a rise in the number of its members would be unlikely to reduce these constraints in any way, even if it did not increase them. That is why it is difficult to find an overall coherence in the Security Council’s actions, which might otherwise ensure that comparable situations are dealt with in an identical manner. This is another illustration of the Security Council’s character as a political body whose every decision is self-originating and specific rather than the implementation of general overriding norms. Even the Charter, which it interprets freely, barely curbs it. It is not so much an institution in terms of a legal body as it is a somewhat maieutic (Socratic) forum—a matrix for collective decisions that enjoys the support of different states. However, it is in no way incapable of adapting itself to the logic of exigencies, ie, of incorporating new and unexpected situations in its general conception of international peace and security and acting accordingly. Its actions following the events of September 11 provide a striking illustration. While the extent of the terrorist activities on American soil were considered an attack, both for American security and international peace, and thus constituted an unexpected challenge and a somewhat singular event, the Security Council did not waver long before finding an effective and elegant solution,

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intellectually speaking, in the form of Resolution 1368 (2001), which recognised the US right to legitimate self-defence. And by the same token, it internationalised an issue that the United States could have considered to be a domestic security matter, at the same time likening all terrorist acts of a certain scale to armed aggression, even when they are not directly or immediately attributed to a specific state. The Security Council therefore broke new ground and killed three birds with one stone: it affirmed the involvement of the United Nations; it provided the United States with universal solidarity; and it allowed the United States to initiate military action, which everyone knew it would proceed to anyway. Furthermore, it made sure that the United States was acting in a manner fully compliant with the Charter, since Article 51, which codifies legitimate self-defence, does not require armed aggression—which is its basis—to stem from a state for self-defence to be initiated. It is true that almost three years later, the International Court of Justice (ICJ) in its advisory opinion ‘Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory’ (9 July 2004, §139) provided: ‘Article 51 of the Charter . . . recognises the existence of an inherent right of self-defence in the case of armed attack by one state against another state.’ This seems to contradict, not to say denounce, Resolution 1368, or else to interpret it a singularly restrictive manner. Could it then be directed only against states that are accomplices in specific terrorist acts and not against private groups that might be perpetrators, planners or supporters of terrorism? In any case, the scope of the Court’s affirmation should not be underestimated, formulated as it was in the form of an advisory opinion without any mandatory character or any relevance with regard to the issue of which it was seized, as it acknowledged itself. It cannot really prevail over the Security Council’s clear-cut practices.

B. Diversity and Flexibility of Means Post-September 11 was not the first time that the Security Council broke new ground. For instance, we know full well that the practice of peacekeeping operations was not provided for by the Charter. Other examples of the Security Council’s flexible adaptation to the needs and possibilities of the moment are legion. If we limit ourselves only to contemporary situations following the East–West divide, we may recall Resolution 678 (1990), which implicitly authorised the recourse to force by Member States ‘cooperating with Kuwait’; Resolution 687 (1991), renewed and reinforced by Resolution 1441 (2002), which imposed a WMD disarmament regime upon Iraq and submitted it to a highly intrusive and coercive inspection regime; Resolutions 827 (1993) and 955 (1994), which allowed the Security Council to set up special International Criminal Tribunals for the former Yugoslavia and Rwanda; and Resolution 1373 (2001), adopted

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just a few weeks after September 11, which imposed a series of legislative, administrative, judicial and policing measures on all states, as well as continuous cooperation between them in order to prevent and fight against terrorism. One recent resolution in particular enables us to gauge the Security Council’s flexibility and adaptability and the manner in which it can submit to member preferences, especially those of the most powerful among them—the United States of America. The one concerned is Resolution 1540 (2004) against the proliferation of WMDs in the service of terrorism, which drew inspiration from Resolution 1373, though less restrictively. One of the issues raised in the course of its formulation concerned the inspection of ships likely to engage in prohibited trafficking in international waters. The Security Council could have decided to make such inspections legal, providing a universal basis for measures envisaged in the framework of the Proliferation Security Initiative (PSI), but it would have subsequently opened the way to the right to universal and especially reciprocal inspection, thereby enabling other naval forces to also take an interest in American vessels. The United States did not see it this way and was able to prevail by ensuring that the issue would be dealt with by bilateral agreements outside of the resolution. In this way, the United States would be able to negotiate agreements authorising them to proceed with inspections without any reciprocity, keeping ships flying their flag beyond reach. If we attempt to generalise the Security Council’s powers now, we can see that they are both normative as well as operational. Its powers are normative when it asserts that the proliferation of WMDs is in itself a threat to international security or requires its Member States to adapt their criminal laws in order to be able to initiate legal proceedings against terrorist acts or acts enabling proliferation. Admittedly, the Security Council is not a legislative body, as some fear or feign to fear. In fact, it cannot actually establish permanent norms, nor make them directly applicable within the domestic laws of Member States. It is up to the Member States themselves to take the necessary measures to enforce them in accordance with their own legal orders. It is true that the Security Council has operational powers, but here too there are substantial limitations. In fact, the Security Council has neither the will nor the ability to conduct its own coercive military operations. It does not have the necessary armed forces, and its Members consider that by its nature the UN role is to make peace, not war. It is UN culture to rebuild—and peace builds where war destroys. Thus, it is up to coalitions or individual members to use forces of war, while the United Nations deploys its knowhow in varied fields, from humanitarian assistance in nation-building to the provisional administration of territories—activities that may be coercive in nature but are always peaceful in character.

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C. Three Levels of Intervention According to American logic, the Security Council is just one element in a toolbox that includes many other instruments—regional organisations, ad hoc coalitions and unilateral action—the use of which is dependent on circumstances and their appropriateness. Apart from the fact that this restrictive view of the Security Council ignores the nonetheless politically decisive problem of the instrument’s legitimacy, it tends to undermine the fact that the Security Council is a more or less complete toolbox by itself. Anything that is accomplished by Member States with a view to maintaining or restoring international peace and security can in fact be decided upon and undertaken under its aegis—including, as indicated by Resolution 1368, legitimate self-defence. Furthermore, anything that is done under its aegis has the advantage of being indisputable at international level. While its sponsorship is not a guarantee of success, it is an assurance of the soundness and sustainability of the interventions concerned. This does not mean that the Security Council is always able to use all its potentialities; their practical application depends on Member State involvement and support. In this regard, three major practical levels of intervention can be distinguished in the Security Council—levels that are dependent on the degree of institutional control that it is able to exercise. At the first, somewhat minimal level, the Security Council can record and take note of a situation that it is not able to control. It may not necessarily give its opinion on the roots of the situation or the legality of actions, but it can validate and introduce them into the scope of its powers; this record can become a cornerstone for the future or even act as an implicit reminder of international obligations for the states concerned. Resolution 1368 may be seen from this perspective. It acknowledged that the US situation was one of legitimate self-defence and, by the same stroke, invited the United States to abide by Article 51, especially with regard to informing the Security Council of measures undertaken in this regard, which has been done in practice. Resolution 1483 (2003) is another example: it takes note of Iraq’s occupation by the coalition troops and recalls that the occupying authorities must respect the international occupation regime, with the rights and obligations it implies on their part. At an intermediate level, the Security Council can organise the restoration of peace and security following a conflict that it did not control and that developed despite its efforts, through provisional assistance and/or administrative measures, thereby replacing an interstate or even intra-state conflict with an institutional peaceful process. Resolution 1244, pertaining to Kosovo, is a good example. Rebuilding Iraq’s sovereignty in the aftermath of the coalition’s intervention, as well as assistance for the administrative and political reconstruction of a constitutional state could have been—and could yet be—another example. However, in this instance, both

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the desire on the part of the occupying authorities to retain control over the political process and the practical impossibility of achieving a cessation of hostilities on the ground have deprived the Security Council of any possibility of effective action in this case. Under the circumstances, it is certainly not the ‘tool box’ that is at issue. At the optimal level, the Security Council assumes its main responsibility as per the UN Charter. Admittedly, it cannot use armed force itself and can in fact barely legitimise its use by third parties. If, as Plutarch wrote, politics and polemics are the two faces of Pallas, the Security Council only fully masters the former. Indeed, as its pacific ‘avatar’, it can do anything: impose obligations on Member States, define a plan of action, establish its objective and methods and supervise its enforcement. Thus, it can fully assume the role of an architect. In addition, it can become the foreman of its own plans, especially through the highly fertile techniques of its subsidiary bodies. That was the case, for instance, when it set up its Special International Criminal Tribunals, although the method has reached its limits for the moment. It is also the case, though at a different level, with Resolution 1373, or to a lesser extent, with Resolution 1540. At the international level, such a range of resources is unique and complements the unique character of the legitimacy it provides to international interventions. Would it be reasonable, then, to deprive international society of the United Nations? Would it be reasonable for the United States to deprive themselves of it, since it certainly cannot work to their detriment?

III. Conclusion To conclude, we can briefly return to the issue of the Security Council’s reform. It is clear that reform would not be able to gainfully add or take away anything from its powers, because it has shown that it has been able to use them intensively and even extensively. In addition, it retains an indefinite capacity for adaptation, insofar as it controls the qualification of threats or attacks on international peace and security as well as the responses that it applies to them. On the other hand, its expansion raises the issue of legitimacy, because many states consider that the site where the shoe pinches and that an expanded and updated Security Council would be better able to bring out, express and channel the collective will of international society. Let us then accept what it portends. However, what would remain of the General Assembly? And more especially, will we not run the risk of sacrificing effectiveness at the altar of representativeness? Would a much larger Security Council be more able to take decisions? Would its new members— whether permanent or not, enjoying veto powers or not—be able to provide it with additional assistance, thereby reinforcing its resources significantly? Conversely, would the reform not add a further element of paralysis? Would

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it amount to assassination by enthusiasm? It is certainly not technically necessary, although it may be useful politically. However, more than reorganisation, it would mean setting up a new body, and it is only when the reform comes into force that the full magnitude of the problems it raises will emerge.

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19 Security Council Resolution 1441 and the Iraq Case: A Missed Opportunity*

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LOT HAS BEEN written about the most recent Iraqi crisis from an international relations viewpoint. Whether considering the crisis from a general geopolitical view with regard to the evolution of American power, by evaluating the danger Iraq represents and the odious character of its regime or by judging the continuing relevance of the policies led by the different actors, one must ultimately question the breadth and depth of the divisions that this affair has created within different institutional groups, particularly the United Nations, the North Atlantic Treaty Organization (NATO) and the European Union. Decidedly less has been written about the legal aspect of the Iraq case, particularly with regard to analysis of the relevant Security Council Resolutions, the most important being Resolution 1441. In France in particular, where the media has widely reported and commented on the matter, legal analysis has often been ignored or neglected in public debate, instead favouring a friend–enemy logic and ignoring the general arguments that non-lawyers have regarding international law (ie, that it must be respected) and the flexibility of international law (ie, that we can make it say what we want). Maybe it is not too late to return to these subjects before this Resolution joins the vast catalogue of failed UN resolutions gathering dust in libraries. In fact, in practice itself and not just in terms of doctrinal speculation, the centre of the crisis became the extensively debated and carefully drafted Security Council Resolution 1441, which was passed on 8 November 2002. The negotiations surrounding the drafting and adoption of the Resolution held the war at bay for several months while the international community held its breath with anticipation. The negotiations focused the Council and Member States’ actions and polarised the debates, expectations and controversies of the main international actors involved—all the more as the Resolution was born in a climate of newfound unanimity, and its drafting seemed to be successful. But it was only partially implemented and can * Previously published as ‘La résolution 1441 du Conseil de sécurité dans l’affaire iraquienne: un destin manqué’ (27 March 2003) Recueil Dalloz 835–37.

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appear as a scale model or as a summary of the strengths and weaknesses of the Security Council.

I. Right Intentions The development of Resolution 1441 took place in three stages: a general agreement to seek a new resolution, which represented a renewal and reinforcement of the previously abandoned inspections regime; agreement on the substance of this very intrusive inspections regime; and debate surrounding a second resolution granting the right to use armed force against Iraq.

A. The Agreement to Seek a New Resolution We must remember that in the months following 11 September and as soon as the fate of the Afghanistan Taliban had been decided, the United States started to look towards Iraq. It was not easy for them to establish a direct link between Iraq and the attacks that were imputed to Al Qaida; basing a military action on self-defence that would be recognised by Resolution 1368 (2001) of the Security Council was thus also a challenge. But Iraq had indicated its intentions with the interruption of the United Nations Special Commission (UNSCOM) in 1998, which had been established in 1991 on the basis of Resolution 687; and weapons inspectors withdrew, claiming they could no longer carry out their work effectively. The country subsequently remained under strict surveillance, particularly by satellite, and was regularly bombarded by the American and British aviation on a dubious legal basis. The circumstances surrounding 11 September provided a new opportunity to bring about a radical regime change in Iraq. The United States, along with Britain, believed that they could use Iraq’s misunderstanding of the obligations defined in Resolution 687, a misunderstanding that led de jure to a break in the ceasefire that had followed the Gulf War. In the eyes of the United States, this misunderstanding justified recourse to the use of force, a right granted by Resolution 678 (1990), which had served as the basis for the Coalition’s armed action in 1991. The question of returning to the Security Council remained, however, as certain states, including France, upheld that the use of force could not be automatic and must be authorised by the Council through formal recognition of a violation of Resolution 687. After multiple diplomatic meetings and equivocation during the summer of 2002, President George W Bush stated in a speech to the General Assembly that the United States would accept going back to the Security Council to seek a new resolution. They were thus using an established and legitimate international means of action. In the following phase, France played an active and important diplomatic role. France wanted to obtain a return to the strengthened inspections

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regime, which could in her opinion lead to the effective disarmament demanded of Iraq, without resorting to armed force but maintaining sufficient military and diplomatic pressure on the country. The use of military coercion would therefore be retained as an option of last resort. The United States, which manifestly did not believe in the efficacy of the inspections, was particularly keen that the Resolution recognise Iraq’s previous violations, demanded Iraq’s total cooperation and formulated the strongest military threat possible. The United States therefore started a gradual but powerful build-up of military power in the region.

B. The Renewal and Reinforcement of the Inspections Regime Resolution 1441, the fruit of long Council negotiations, was finally voted unanimously on 8 November 2002. A new subsidiary organ of the Security Council, the Monitoring, Verification and Inspection Commission (UNMOVIC), in cooperation with the International Atomic Energy Agency (IAEA), was responsible for carrying out the weapons inspections in Iraq. The Iraqi government was ordered to cooperate fully and asked first to provide, within a month, all information regarding its prohibited weaponry; second, to grant access to all sites at any time, as well as the option of being able to question Iraqi experts freely, even those outside of the country. While in principle Iraq accepted these demands, affirming it no longer possessed any prohibited weapons, it dragged its feet when it came to full cooperation. From the outset, there was ambiguity about the very nature of the verification measures undertaken in this manner. Was it, as the British and Americans maintained, a question of demanding that Iraq either prove they had no prohibited weapons or recognise and publicly destroy those in their possession? Or, more traditionally, was it up to the inspectors, without being hindered in any way by Iraq, to discover these weapons on the basis of the government’s declarations and in-country inspections and then to destroy them or have them destroyed? In other words, with whom did the burden of proof lie? Should we presume Iraq was guilty or inversely, positively establish possible violations? If we take the first hypothesis, it is clear that Iraq was guilty—they had to be guilty, as it is impossible to demonstrate a total absence of weapons. Thus the inspections became a prelude— a somewhat more formal one—to the inevitable recourse to the use of force.

C. The Debate about a Second Resolution and British-American Military Pressure Very rapidly, the United States and Britain, unhappy with the initial Iraqi declaration, which they considered incomplete and untrue, considered that there was a clear violation of Resolution 1441 and that the use of force was inevitable. The United States considered that there was no need for a new

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resolution that would give them specific authorisation, as under the terms of paragraph 13 of Resolution 1441, Iraq had been warned of the ‘serious consequences’ that any new violation would provoke. This, however, brings us back to the same problem posed by Resolution 687: paragraph 4 of Resolution 1441 states that any Iraqi shortcomings must be reported to the Council for assessment in accordance with paragraphs 11 and 12, which stipulate the immediate convening of UNMOVIC and IAEA representatives (paragraph 11) and the Council (paragraph 12). This seems to exclude unilateral assessment by one or several states, whether members of the Council or not. It was then that the United Kingdom, both under pressure from British public opinion and counting on understanding from the Council, convinced the United States to accept the principle of a second resolution. This started the process that would bankrupt the inspections process at the heart of Resolution 1441, transforming the entire endeavour into a wash of ambiguities and hopeless contradictions.

II. Incomplete Implementation The uncertainties of the inspection process were followed first by stalemate regarding the vote on a second resolution and then by a substitution of the logic of unilateral war for the diplomatic and institutional logic that had driven Resolution 1441.

A. The Uncertainties of the Inspection Process The inspection mission directors, Hans Blix, who represented UNMOVIC, and Mohammed El Baradei, who represented IAEA, were requested to present to the Council regular reports regarding the progress of their work. The burden of their responsibilities weighed heavily upon them, as their conclusions meant the difference between war and peace. They were not in a position to and certainly did not wish to present clear-cut conclusions. On one hand, they stressed the absence of proof that Iraq possessed prohibited weapons, noting the progress of the Iraqis in terms of cooperation; but on the other hand, they could not guarantee that the weapons did not exist, noting the shortcomings in Iraq’s level of voluntary cooperation. Certainly, they brought up the progressive advances in their mission without being able to fix the exact terms or the conditions under which it would be concluded. This uncertainty exasperated the Americans and British, who decided to proceed rapidly to a vote on a second resolution that would present an ultimatum to Iraq—and would lead to a rapid shift towards the use of armed force.

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B. The Failure of the Second Resolution At the heart of the failure of the second resolution, which opened the door to the use of unilateral armed force, was the French veto. It alone deserves to be the object of a specific study, but that exceeds the scope of this essay. It should moreover be noted that the failure of the resolution was the result of a misunderstanding. France made it clear that they would not accept premature use of force, but for several reasons the British and Americans were convinced that France would not follow through and would eventually give in. In other words, the dissuasive veto, which would have forced a compromise, did not work, due to France’s initial lack of credibility. This error of appreciation was to have serious consequences, as everybody forgot that France had been supported throughout by Germany, a non-permanent Council member, as well as by public opinion; moreover Russia, another permanent Council member, had no reason to please the United States. Nonetheless, the United States, with the United Kingdom and Spain, tried to force the issue by proposing a resolution that would issue an ultimatum to Iraq. By seeking to rally the remaining undecided non-permanent members to their cause, they hoped to isolate France, who they suspected would not dare to issue a solitary veto. Thatis, however, precisely what happened. The French veto was solemnly announced by the President of France, supported by French public opinion and bolstered by significant international sympathy. By doing so, France saved rather than risked the loss of its veto right, because by submitting to pressure, France would have abandoned its veto right, and the United States would have been the only remaining power able to exercise it. Perhaps this was an added bonus for which the United States was hoping.

C. The Unilateral Ultimatum and the Use of Armed Force without Security Council Authorisation The Azores Summit of 16 March 2003 between the three godfathers of the resolution project, Spain, the United States and the United Kingdom, signalled their isolation just as much as their determination. It led to the proposed resolution being withdrawn, as the French veto had recovered, albeit belatedly, its dissuasive value. France was maligned as scapegoat and threatened with retaliatory acts that were as vague as they were awful—and it must be said, in vain. At the same time, President Bush delivered a 48-hour ultimatum to Iraq, demanding Saddam Hussein and his sons leave the country or see immediate military action against Iraq. In terms of law as well as fact, this ultimatum holds a dual lesson. In legal terms it is a clear rupture of any link between military action and Security Council resolutions, whether Resolution 1441, Resolution 687 or any other, as none of them had regime change in Iraq as an objective. Thus any attack

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launched by those responsible for the Iraq war was purely unilateral and arbitrary, which undeniably calls into question the international legality of their action. In fact, they had shown that the logic they were inspired by, and the timing of the action clearly indicated that it was purely military and war-like. Everything happened as if the war was imposed, not by default with regard to the Security Council resolutions, but because of a need to launch the war before the spring and because of local climatic difficulties— as if the huge military build-up in the previous months imposed its own rationale. This was clearly a case of substituting a policy of armed and unilateral force for multilateral diplomatic and institutional diplomacy, which could have peacefully attained the officially sought goal—Iraq’s disarmament. By their own hands, the British and the Americans destroyed a Resolution for which they had voted. Whatever one thinks, this policy was in no way founded on international law, which it ignored in an almost blatantly provocative manner. Let us recall the jurists adage: ex injuria jus non oritur.

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20 Security Council Resolution 1540: The Proliferation of Weapons of Mass Destruction, Terrorism and Non-State Actors*

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N 28 APRIL 2004, the UN Security Council adopted Resolution 1540, which concerns the fight against the proliferation of weapons of mass destruction (WMD), more specifically the risk related to the acquisition of such weapons by ‘non-state actors’. The Resolution aims to combat ‘threats to international peace and security caused by terrorist acts’. It is explicitly drafted under Chapter VII of the UN Charter. Following an American initiative that was supported by Spain, France, Romania, Great Britain and Russia, the Resolution was passed unanimously. It consists of a preamble that is divided into sixteen points, and a plan that is structured over twelve paragraphs. Amongst these we can summarily distinguish the first five paragraphs as the central drivers of the Resolution, each one opening with the imperative form of ‘decide’, and a subsequent outer circle formed by the following paragraphs, in which, depending on the case, the Council ‘appreciates’, ‘recognises’ or ‘requests’. The five key paragraphs concern the stance the Member States must adopt with regard to non-state actors ‘that attempt to develop, acquire, manufacture, possess, transport, transfer or use nuclear, chemical or biological weapons and their means of delivery’ (paragraph 1). States must fulfil three types of obligations: in general, not to help such actors (paragraph 1); second and more specifically, to adopt and apply domestic laws outlining illegal activities, including aiding or funding of such activities, as well as the punishment for violating these prohibitions (paragraph 2); and third, to take prevention measures by establishing domestic monitoring systems that will make it possible to impede such activities (paragraph 3). Paragraph 3, which outlines the measures to be taken, is the most precise and detailed of * Previously published as ‘La résolution 1540 du Conseil de sécurité (28 avril 2004): entre la prolifération des armes de destruction massive, le terrorisme et les acteurs non étatiques’ (2004) 4 Revue générale de droit international public 855–82.

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the five main paragraphs. In addition to this is the creation of a monitoring committee, comprised of all the members of the Council, who will receive reports from the states regarding the implementation of the Resolution (paragraph 4). Lastly, paragraph 5 ‘decides’ that the Resolution does not affect the laws and obligations resulting from multilateral treaties relative to the non-proliferation of WMD. The following paragraphs include measures that are less specific in terms of both content and authority. Regarding the former, the proliferation of WMD is understood generally and not limited to non-state actors (paragraphs 8, 9 and 10); as such, there are appeals for international cooperation, specifically within the framework of existing multilateral treaties, for which recommendations are outlined in paragraph 8. Paragraph 7 also invites states ‘in a position to do so’ to respond to requests from other states for assistance with applying the Resolution, in terms of legal and regulatory infrastructure, implementation experience and resources. Regarding authority, these paragraphs contain mere invitations. The recommendations of the whole Resolution are, however, authorised under Chapter VII and are subject to the Committee of the Security Council reporting procedure set out in paragraph 4: states must thus indicate what measures they have taken in order for the Resolution as a whole to be implemented.1 The analysis of this kind of instrument is inseparable from both the context in which it was negotiated and the general legal stakes surrounding its adoption. There are three factors that must be taken into consideration. The first involves the Security Council itself, which was convalescing after the Iraqi crisis—and in this respect, the fact that Resolution 1540 exists at all is significant. Second is the issue of WMD proliferation, a concern that was previously negotiated largely through multilateral conventions. As we know, Council attempts to intervene in the matter met with great misfortune during the Iraq crisis. The final factor involves the fight against terrorism, which has become a great rallying point to facilitate the drafting and voting of statements and resolutions that are sometimes as formidable as they are vague. Still, the reference to terrorism has allowed the Council entry into an area that it had essentially only approached either as one of several drivers of larger treaties—like the Nuclear Non-Proliferation Treaty (NPT)2—or 1 Certain states seem to consider that given that this committee has been set up under paragraph 4, the obligation to present a report on the application of the Resolution concerns only the measures set out in the preceding paragraphs and not the following ones. Nothing in this text bears out such a restriction. Para 4 ‘calls upon the States to present a first report . . . to the Committee on the steps they have taken, or intend to take to implement the present Resolution’. 2 Several multilateral agreements have provided for bringing the matter to the attention of the Security Council in the event of the failure to comply, in particular the Nuclear NonProliferation Treaty (NPT). It is also on the basis of the NPT that the Council adopted two successive resolutions providing security guarantees for states not equipped with nuclear weapons (Resolution 255 (1968) and Resolution 984 (1995)).

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within the context of a specific situation (Iraq), which led to a rapid use of armed force.3 This means that Resolution 1540 is at the same time multifaceted and reinforced—with an implicit agenda as much as specific prescriptions. It focuses on and encapsulates a number of current debates regarding the role of the Security Council: the objectives and means of disarmament and the non-proliferation of WMD; and the most efficient manner in which to fight terrorism—multilateralism or ad hoc coalitions. In this respect, it belongs to a complex normative and political context. It is normative because it is only one element of a whole that is already thick with treaties or related nontreaty based instruments, and represents an attempt to fill in the gaps in the face of the increased proliferation risks since the 1998 Indian and Pakistani nuclear explosions. It is political because the accent is henceforth placed on the action against accelerated proliferation, rather than on preventive regimes, the efficiency of which has been questioned, particularly by the United States. Taken on its own, the Resolution at least has the merit of being the product of a long negotiation that interested numerous partners and governing authorities, well beyond the fifteen Council members at the time.4 But the long period of negotiation obtained Council unanimity only after significant compromise, which eventually led to the blunting of the effectiveness of the Resolution. At its core, the Resolution contains more bureaucratic promises than operational perspectives. At the same time it brings the Council, though in an abstract and general manner, into a new domain—the proliferation of WMD.5 This opens up a number of possibilities for the future, but it is a rare that the Council formulates and then develops doctrines promoting long-term action.

I. Long Negotiation, Composite Instrument The debate over Resolution 1540 took place in the shadow of both September 11 and the Iraq crisis. After September 11, the Council immediately took charge of the question of WMD and terrorism, and with Resolutions 1368 and 1373 (2001), it undertook to organise a multilateral supervision regime for state reactions.6 On one hand it recognised the right 3 As we know, a series of Council Resolutions following Resolution 687 (1991) subjected Iraq to a forced and monitored disarmament plan. The difficulties that this inspections regime encountered led to heated debate and the eventual adoption of Resolution 1441 (2002), which in turn led to an invasion and occupation of Iraq by a US-led coalition. 4 Apart from the five permanent members, Algeria, Germany, Angola, Benin, Brazil, Chile, Spain, Pakistan, the Philippines and Romania were also serving on the Council. 5 The most direct precedent for Resolution 1540 is the Declaration by the President of the Security Council on 31 January 1992, following the meeting of the Council Heads of State and governments, declaring that the proliferation of WMD was a threat to international peace and security. But it was not a resolution in the formal sense of the term. 6 S Sur, Le Conseil de sécurité dans l’après-11 septembre (Paris, LGDJ, 2004).

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of the United States to use legitimate self-defence and thereby deploy the use of armed force, while on the other, it forced states to take, under its supervision, legislative, penal and administrative measures to fight against terrorism. However, with the intervention led by the United States against Iraq in 2003, the Council was forced to undergo a dual divestment of its mandate as the inspections regime outlined in Resolution 1441 was unilaterally interrupted by the action of the United States and its allies,7 which then stripped the Council of its ability to authorise or even control the use of armed force.8 The legal argument used by those involved was certainly based on the implementation of previous Resolutions. This in fact led to these Resolutions being pushed aside and scarcely hid the supposition that the intervention seemed to be the application of a doctrine of preventive war, far removed from the Charter and Council competence.9 Resolution 1540 was preceded by the adoption of a General Assembly resolution, at the initiative of India, regarding a related subject.10 It was largely the result of an initiative led by President George W Bush during a speech to the Assembly on 24 September 2003—in which he did not discount the United Nations or the Security Council but proposed to recognise the important structural role they could play.11 It then took several months, marked by a necessary range of debate and negotiations, to then arrive at Resolution 1540. While the Council served as the rallying point, all the members were not involved to the same extent, and a number of non-members were implicated. The outcome took the form of a set of obligations for all the Member States, leading to a sort of normative triangle, the three angles of which are made up by Resolution 1540 itself, the implicated national legislations and the relevant international conventions. Thus this Resolution can be compared not to Jupiter thundering and breaking down any form of resistance but rather to Mercury the mediator, 7 With regard to Resolution 1441, one of the elements confounding the American attack of Iraq, is that it led to the de facto interruption of the designated inspections regime, without there being a prior Council authorisation; in the same way, this attack led to the evacuation of the UN Iraq-Koweit Observation Mission (UNIKOM), which was established under Resolution 687 to monitor the demilitarised zone between Kuwait and Iraq, and to the disappearance of this zone—again without prior Council authorisation. 8 The basis of the US attack on Iraq was not Resolution 1368, which had recognised their right of legitimate self-defence, even though one of their justifications was the link between the Iraqi regime terrorist movements. However, during the military operation against Afghanistan (2001), they had respected Art 51 of the Charter and informed the Council of their military actions. 9 See the national security doctrine formulated in September 2002 by the administration of George W Bush. See also E Brimmer, ‘L’action préventive selon George W Bush’ (2004) 5 Annuaire français de relations internationales 679–86. 10 Resolution 57/83 (9 January 2003) on the ‘Mesures tendant à prévenir l’acquisition d’ADM par des terroristes’. 11 In this speech, President Bush called upon the Council to ‘criminalise the proliferation of WMD, . . . exercise a strict control on exports and . . . secure all the sensitive material’. Le Figaro, 24 September 2003.

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uniting different viewpoints, not without ambiguity and ulterior motives, or if you prefer, winding the serpents around his sacred staff.

A. The Negotiations: Segmented Multilateralism The process through which Resolution 1540 became adopted can be considered multilateralism because the negotiations went far beyond the limited framework of the Council and took place amongst different competent authorities. It was segmented because it was not limited to the United Nations and took place at different levels, following a series of separate measures. We will retrace neither the details nor the development but will attempt to highlight several facts to clarify the more general evolution of the Council, as this method is not without precedent. On one hand it underlines the wider perception of the Council’s deficiency in terms of representation due to its composition, while on the other, it responds to this perception as it tries to compensate by broadening participation in the negotiation to include states not on the Council, in order to reach the broadest agreement possible. To a degree, this open formula replaces Council reform, which we know is impossible. If we insist on this aspect of the Resolution, then it is to the extent that, for a certain number of states, its existence and the modalities of its adoption seem at least as important as its content.12 i. The Multiplicity of Authorities and Forums for Discussion and Debate First, the definition and articulation of positions within a single state are classic problems—between the New York delegation and the government, possibly between different ministries and agencies. Thus, in the United States, the State Department’s position, which was more positive, did not necessarily receive an enthusiastic reaction from the Pentagon; moreover the American UN delegation had to mobilise the Oval Office, which was often focused on other matters. The opposite seemed true for France, which was very keen on the adoption of such a resolution and where the position of the central administration prevailed. On the contrary, the Pakistani delegation in New York seems to have followed its own political agenda, which was more or less followed by the Pakistani government. Questions regarding the level of discussion are also related: when faced with internal contradictions, it can be necessary to call upon political mediation—though in this instance, it was not necessarily visible. However, political mediation becomes visible when it is not only domestic but bilateral or multilateral: to overcome a delegation’s hesitation, there have been instances when diplomatic pressure is exercised at a higher political level, via political 12 This is based on indirect but exact information, the source of which still cannot be identified here.

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démarches carried out from the capital. At a bilateral level, we can note, for example, the meetings between Mr de Villepin of France and Mr Ivanov of Russia,13 or between Mr Bolton, the American Under-Secretary for Arms Control and International Security, and Mr Kysliak, the Russian ViceMinister for Foreign Affaires, which took place on the sidelines of a G8 meeting in March 2004;14 or even the démarches carried out with Pakistani authorities. At the EU level, the contacts between Member States were not really very productive, insofar as the nuclear question, as is well known, creates vast divisions between them. In fact, a maximalist tendency arose particularly around Germany and Sweden, two states that are very attached to nuclear disarmament and hence a priori hostile to a text that does not make specific reference to it. One of the successes of the negotiation seems to be that this possibility was stifled at the outset, but the division between the European permanent members of the Council (ie, the United Kingdom and France) and the European non-permanent members (ie, Germany, Spain and Romania) is very strong in this respect.15 Regional groups were consulted, including the Organisation of French Speaking Countries (La Francophonie). They were able to make themselves heard, as was the Non-Aligned Movement, who even showed their appreciation to the invitation—in this case, it was more an effort to isolate Pakistani hesitations. The G8 also played a role, as Japan was not a member of the Council at the time.16 Within the Council, the three permanent Western members (P3) were not inactive—an indication that the spectacular rift resulting from the Iraqi affair was a thing of the past. As usual, China maintained a discreet stance, which does not mean that they had no interests or position on the content. Russia’s primary concern was the fight against terrorism and to consolidate international solidarity on this subject, particularly with regards to Chechnya. We will come back to these basic positions. But the discussion 13

18 February 2004 meeting between the French and Russian foreign ministers. Until then, Russian diplomacy supported limiting the object of the resolution on terrorism. The Bolton–Kysliak meeting made it possible to go beyond this restriction and facilitated the introduction of a public project. 15 On the basis of the Thessalonika Summit (2002), an ‘EU Strategy against the proliferation of WMD’ was adopted by the Political and Security Committee on 2 December 2003 (Doc 15656/03). On 10 December 2001 the Council had previously adopted conclusions on the incidences of terrorist threats to EU policies in terms of non-proliferation, disarmament and weapons management. 16 Japan did, however, participate in the Proliferation Security Initiative (PSI). See below n 21. As for the G8, its role was less developed and visible than it was regarding Resolution 1244 (1999), which marked the return of the Security Council to the Kosovo affair after the military actions of the NATO Member States. In this resolution, in fact, the Council also adopted a political declaration that was adopted by G8. However, the G8 on its own accord took the initiative in June 2002, following an American proposal, to launch the ‘Global Partnership against the Spread of Weapons and Materials of Mass Destruction’, which amongst other things brought together thirteen other partners. Like the PSI, this Global Partnership is an initiative and not an organisation. 14

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was not limited to the P5: Germany17 and Pakistan, very important non-permanent members, had, for example, very divergent views on the question, even if both these states had to accept a compromise. As usual, an institutional dividing line separated non-permanent from permanent members. But even in this case, it was not translated into political opposition, given that support from the core of permanent members, particularly the P3, seemed to be solid. Moreover, the effect of individual nonpermanent members was partially diluted by their acceptance of the procedure to hear all Member States that wished to express themselves in the Council’s public sessions—a procedure that had already been employed with regard to the Iraqi affair. ii. The Stages of Negotiation within the Council The stages of negotiation within the Security Council have been classically connected, though their dynamic was slow, and a few complementary ingredients were added. The issue of the competence of the Council is a case in point. Should the referral of a text that imposes general and permanent obligations on states not be done through conventional procedure? Is the referral of such a text to the Council a substitution for negotiating a treaty that is based on the consent of the participating states?18 Concretely, and beyond the temptation to solidify a board of directors of international society and an authoritarian directorate, are we not taking away from the role and utility of the Conference on Disarmament?19 Moreover, by giving this text a binding character, is the Council not exercising a unilateral normative power not in the spirit in the Charter—that is to say, providing a punctual reaction to specific situations that threaten international peace and security? We will return to this question, but the Council did not stop in the face of these objections, confirming a longstanding tendency to interpret its competent authority very broadly. We can also note that the General Assembly could have claimed authority, as the Charter entrusts it with the mission of adopting recommendations on the principles governing disarmament and 17 Germany may have wanted to lead the non-permanent members—but other European and Western solidarities seem to have carried the day. 18 This concern circulating among the non-permanent members of the Council was in particular expressed at the Council by Pakistan. Ambassador Munir Akram, who was very active throughout the process, presented an extremely articulate explanation of the vote, underlining in particular that the Council ‘cannot legislate for the world’ and that it can only ‘assume the stewardship of global non-proliferation and disarmament issues’. These objectives can be achieved ‘only in more universal and discriminatory forums, especially the Conference on Disarmament’. 19 For several years, the Conference on Disarmament has been in a state of lethargy, as an agreement on an agenda has not been reached. The cut-off question (an end to the production of fissionable matter for military ends) is a stumbling block. See P Dahan , ‘La Conférence du désarmement: fin de l’histoire ou histoire d’une fin?’ (2002) Annuaire français de droit international 196–213.

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the regulation of weapons, which would have solved—by decreasing them— the problems related to having to apply Chapter VII. Yet this was not considered during negotiations either.20 In fact, the question was not really about an alternative between the Security Council and the Conference on Disarmament or between the Council and the General Assembly; rather, it was far more about the Council Resolution at hand and developments regarding the Proliferation Security Initiative (PSI). This limited group of powers, a sort of ad hoc coalition of American initiative, had undertaken several months earlier to establish a common doctrine and to prepare operational actions against proliferation attempts—collectively, but unilaterally nonetheless.20 The initiative included neither Russia nor China and was not at all limited to proliferation by nonstate actors. It may be efficient, but it lacks both international legitimacy and legal instruments to lead coercive measures. In this respect, using the Security Council presented a fourfold advantage: the reincorporation of the United States within the Council with regard to a matter upon which they place a great amount of importance; international legitimacy for the measures; the legal authority indispensable for their implementation; and universality of application—and possibly of origin. The process leading to Resolution 1540 started with long months of discussion during which national positions—and particularly fears—were expressed. These were largely based on the desire to remain outside any restrictions and to maintain their own security interests. This informal period was in reality crucial, making it possible to define the objects of the Resolution more precisely; in practice, it limited its objects and helped to define its authority once it was clear that they were seeking unanimity and not opposition with a minority, however limited. On 1 March 2004, the United States circulated, without submitting it, a draft resolution. It was officially introduced on 25 March. The questions of support, adoption procedure and the date then arose. France gave its support only at the end of the process;21 initially it would have liked a more solemn resolution, adopted 20 Art 11 entrusts the Assembly with the authority to adopt recommendations on ‘the principles controlling disarmament and the regulation of weapons’ (Chapter I). On this basis, it held an extraordinary session regarding disarmament in 1978, adopting a highly developed final document (Res /S-10/2, 30 June 1978). See H Thierry, ‘La nouvelle politique française du désarmement’ (1978) Annuaire français de droit international 512–19. It has not been able to modify the document since, despite the profound political and strategic transformations that have occurred. 21 Before the initial proposal leading to Resolution 1540, several meetings between select states took place in Madrid on 12 June 2003, in Brisbane on 9–10 July 2003 and in Paris on 3–4 September 2003, under the aegis of PSI and based particularly on the Declaration by the President of the Security Council on 31 January 1992. PSI assembled the representatives of eleven countries: Germany, Australia, Spain, the United States, France, Italy, Japan, the Netherlands, Poland, Portugal and the United Kingdom. The proportion of NATO members was predominant, and Russia, like China, was absent at this stage. At the Paris meeting a ‘Declaration on the Principles of Interception’ was adopted. The PSI aims to ‘impede and put an end to the transport of WMD, their transit routes and the subsidiary material destined for

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by an extraordinary meeting of Heads of States and governments, in the style of the Declaration of 31 January 1992. Instead, at the request in particular of South Africa, Germany, Canada, New Zealand, Sweden and Switzerland, there was a public hearing for all the states that wanted to attend.23 In addition, the United States would have preferred it to be adopted in March, under French presidency. After several final amendments, the text was finally voted unanimously on 28 April 2004 and came into effect under German presidency.

B. The Instrument or the Normative Triangle Resolution 1540 must be seen as a normative triangle, because according to its own terms, it cannot be taken in isolation. It contains its own obligations, under Chapter VII authorisation; however, on one hand it belongs to a preexisting WMD conventional framework, which it does not intend to infringe upon, and on the other, it stipulates that states must adopt a series of internal measures depending on their different legal systems. Alone, these internal measures are not meant to detract from relevant conventional obligations. It is at these three levels that the legal implications of the Resolution must be understood: first it is autonomous, then complementary and finally, a matrix. i. The Autonomous Obligations Stemming from the Resolution Regarding these autonomous obligations, the question was first posed about granting the Resolution Chapter VII authority. Some states, including China, did not view the authoritarian nature of the Resolution favourably. They would have preferred a text geared more towards inducement rather than towards restriction, leaving greater flexibility for application and therefore coming under Chapter VI authority.24 The arguments for this were virtually contradictory. Some considered that this would detract from the strength of multilateral conventions and undermine the authority of existing agreements, particularly the NPT. That treaty was, in their opinion, insufficiently mentioned in the text, and this threatened to discard the nuclear counterpart obligations of the standing nuclear powers that the NPT included within its disarmament schema.25 As such, counter-proliferation and coming from the non-state actors that give rise to concerns (states of concern) in terms of proliferation’ (Press Release, Paris, 4 September 2003) . A meeting in Poland in August 2004 brought together sixty participants. The PSI is not defined as an institution but as an initiative. See also below n 45. 22 Benin was asked to show its support but did not respond. 23 17 April 2004. 24 Hence the reference to the peaceful settlement of disputes in the Preamble. 25 Art 6 of the NPT contains the commitment of those party to the treaty to ‘carry out negotiations in good faith, with the aim of arriving at efficient measures regarding an end to the nuclear arms race and disarmament, and to arrive at a treaty for general and complete disarmament, under strict and effective international control’. It was interpreted by the International

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would then be substituted for disarmament.26 On the contrary, others feared that the Resolution would be a perverse means to authoritatively universalise NPT obligations, thus calling into question the principle of free consent to treaties.27 The response to this dual preoccupation was a reminder not only of the intrinsic authority of the treaties themselves but also of the fact that their obligations concern only those party to the treaties (paragraph 5). Moreover, recalling Chapter VI, the Preamble (in the third point) insists upon the obligation to settle disputes by peaceful means. The question of the Security Council’s normative power is closely related. An objection presented to the Resolution project was based on the idea that the Council was unduly assuming a legislative authority of a general and permanent nature, despite the fact that the Council is designed to react to specific situations that are by definition temporary. Thus, outside of a clear and present threat or an attack on peace and international security, it cannot take authoritative measures that introduce a transformation of positive international law. Specifically, it cannot take permanent measures, as their authority should be limited to re-establishing peace.28 This is a typical objection. It could have just as easily been raised with regards to Resolution 1373, which Resolution 1540 seems in many ways to be a reflection of but which did not deter the Council. It based its measures on the consideration that ‘the proliferation [of WMD] constitutes a threat to international peace and security’ (Preamble, first point). Moreover, the measures are not permanent in nature but merely valid for an indefinite duration, until the Council modifies them or puts an end to them. In a less explicit but still perceptible manner, the fear persisted that certain states, in particular the United States, would be tempted to use such a resolution as a basis for the unilateral use of force, with the Iraq precedent looming in many minds. After all, the coalition led by the United States justified its armed intervention by implementing previous Council Resolutions, even though these Resolutions did not explicitly authorise the use of armed force. Thus, why should Resolution 1540 not be used in turn as the basis for unilateral action in the event of violation? Furthermore, what about even Court of Justice (ICJ) in the advisory opinion of 8 July 1996, on the illegality of the use of nuclear weapons as a resulting obligation. We see, however, that it is not about an obligation to negotiate, there is no deadline and nuclear disarmament is closely linked with general and total disarmament, which goes well beyond nuclear weapons. 26 S Sur, ‘L’entreprise du désarmement au péril du nouveau contexte de sécurité’ (2004) Annuaire français de relations internationales 727–47; P Dahan, ‘Désarmement: préserver l’héritage, relancer l’entreprise’ (2004) Annuaire français de relations internationales 748–61. 27 This fear was particular to Brazil but mainly expressed by India and Pakistan, due to the uncertainty of their nuclear status and also to Resolution 1172 (6 June 1998), further to the official nuclear tests carried out by both these states. The Council insisted on the importance of the NPT, and pressed India and Pakistan, like the other non-parties, to join the treaty ‘without delay and without conditions’. 28 On these points, see in particular the Rennes Conference by Société française de droit international, Le Chapitre VII de la Charte de l’ONU (Paris, Pedone, 1995).

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unsubstantiated violations, ie, mere allegations? Was it not a trap intended to provide a coalition of volunteers a pretext for military intervention, whenever and wherever they wanted? This gives us an idea of the climate of mistrust in international relations resulting from the actions of the United States and those who militarily occupied Iraq in 2003—and to go back even further, resulting from the NATO action against Serbia in 1999. Those insinuating this possible derivative use of the Resolution were not always of good faith, and nothing in the final text would allow the justification of such a scenario. The Council in paragraphs 11 and 12 declared itself decided in following the implementation of the Resolution and remaining seized of the matter.29 Furthermore, the autonomous authoritative character of the measures is not the essential part of Resolution 1540. Regarding states, the Resolution includes two types of obligations: to abstain from aiding non-state actors who may attempt to procure WMD (paragraph 1), a direct international obligation; and to report to the Council Committee created by paragraph 4 regarding measures they have taken or envision taking to implement the Resolution. The compulsory nature of the text is limited to this. The other standing obligations with regard to states are much less authoritarian, to the extent that some considered that they did not fall under Chapter VII: they include requests and invitations (paragraphs 6 through 10). Pakistan secured a final amendment to group the first five decisional paragraphs together, to be followed by the paragraphs that were formulated in a more flexible manner. In reality, this is not an obstacle to the general reference to Chapter VII because, as we know, in this framework, the Council has the choice of the nature and the intensity of the obligations it establishes. ii. The Complementary Effect of the Resolution The complementary effect of the measures is based on the reference of the Conventions in force related to the non-proliferation of WMD. Approached in the Preamble with a general mention (fifth point) and by a more specific reference to the Convention on the Physical Protection of Nuclear Materials (paragraph 11), it is developed and specified in paragraph 5 of the mechanism. The three main multilateral conventions on the subject are explicitly mentioned: the NPT, the Chemical Weapons Convention (CWC) and the Biological and Toxic Weapons Convention (BTWC). This reference, as was mentioned, is meant to reassure states who feared that Resolution 1540 corresponds to an effective abandon by certain nuclear powers, specifically the United States, of preventive and cooperative methods in the non-proliferation 29 It is true that Resolutions 687 and 1 441, invoked by the United States and their supporters to justify the military action against Iraq, contained the same restriction. The terms of these Resolutions, however, were much more related to questions of the use of armed force, and the vast majority considered that the actions of the coalition in 2003 could not be based on these Resolutions.

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arena. The authoritative and unilateral formula used by the Council could, in their eyes, marginalise the specific obligations of existing parties to the NPT who possess nuclear weapons, particularly the obligation for nuclear disarmament reaffirmed by the International Court of Justice (ICJ) advisory opinion of 8 July 1996.30 The integrity of conventional instruments in fact has dual significance. On one hand, conventional obligations are not affected in terms of their reach or their content, and Resolution 1540 does not modify them any more than it suspends or reinforces any clause with regard to the party states.31 For example, some would have wanted to see a prohibition on the withdrawal from these conventions, particularly the NPT.32 Nonetheless, there is no question of extending the writ of these treaties outside of the circle of states party to those treaties—these states are referred to specifically to calm the fears of, in particular, India and Pakistan. These states feared or pretended to fear that indirectly there would be an attempt to force them to comply with the treaties to which they refused to become party. Their fears may have been fed by a previous resolution, Resolution 1172 (6 June 1998), which was adopted by the Council following the nuclear tests that announced these states’ possession of nuclear weapons. Resolution 1172 relied heavily on the NPT and, among other things, requested the two states to adhere to the treaty (paragraph 13). The text of Resolution 1540, however, excludes such requests. Rather, it subtly promotes the universality of relevant conventions (paragraph 8). iii. The Matrix Effect of the Resolution The matrix effect of Resolution 1540 is in the long run the most important but also the most problematic, as it implies an indirect measure: it obliges states to take a series of internal measures at various levels (paragraphs 2 and 3). These include both legislative measures to prevent or suppress nonstate actors from carrying out prohibited activities, ‘in particular for terrorist purposes’ (paragraph 2), and administrative ‘domestic controls’ to prevent the proliferation of WMD. The technical content of these measures is described in paragraph 3. The splitting up of the normative procedure is inevitable, given that the Council’s resolutions have no direct effect on 30

On this point, see above n 25. One could also think that the Resolution does not intend to undermine the numerous concerted non-conventional instruments that complete or define these conventions, particularly by anticipating concerted measures of control over exports of sensitive products or technology in the area of WMD or missiles. R Prenat, ‘Les régimes multilatéraux de maîtrise des exportations de technologies sensibles à utilisation militaire, (1998) AFDI 298–311. The content of the Resolution is even closer to these mechanisms than that of the multilateral treaties on the subject, even when dealing with covert activities or the black market rather than official activities. 32 In order to avoid a contagion of withdrawal by North Korea, which could lead to a general unravelling of the NPT. 31

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domestic laws but have to be applied by means of domestic rulings and procedures.33 It is also necessary, given the impossibility of direct international jurisdiction over private or public activities contravening the Resolution. Would it have been possible to organise a sort of direct international crackdown, for example by widening the jurisdiction of the International Criminal Court or even by establishing a special international tribunal? It seems that the question did not arise. The US hostility to the International Criminal Court (ICC) and the distrust that many states have with regard to an international definition of terrorism explain the choice of a more classic formula of domestic jurisdiction.34 However, a Council Committee comprised of all Members was instituted, along the lines of the monitoring Committee created by Resolution 1373 (paragraph 4). But if the distinction means anything, it resembles a followup committee more than a monitoring committee. The obligations of the states are in fact limited, consisting of presenting the Committee with a report regarding the measures they have taken or envision taking. Moreover, the Committee’s existence is limited to two years, making it less resolute than the Committee for Resolution 1373 and indicating that this precedent had worried a number of states.35 The Resolution also recognises that ‘some states’ may need help and invites states ‘in a position to do so to offer assistance . . . in response to specific requests from states’. In other words, it is not the Council who provides assistance. It remains an interstate matter, functioning upon a purely voluntary basis. Yet it assumes that a request for assistance must be accepted and also that the initiative in the matter will be similar to interference. The concern about infringing upon state sovereignty is thus clear. In the same spirit, constitutional obstacles that could oppose the internal application of the Resolution do not seem to be envisioned. These restrictions on the reach of the instrument can also be found in other forms when we look at the content of the recommended or imposed measures.

II. Floating Object, Strong Signal Up till now we have observed the clear as well as subtly well-crafted aspects of the text of Resolution 1540. Now we must turn to its cracks and dents. The above arguments indicate that the Resolution is more a revelation of 33

This is in conformity with the structural dualism between international and domestic law. The call for internal crackdowns is not always acted upon, even when the matter concerns terrorist acts. Thus Resolution 1368 ‘calls upon all the States to work together urgently, to bring to justice the perpetrators, organisers, and sponsors of these [September 11] terrorist attacks’ (paragraph 3). This appeal was not widely heard; the United States in particular preferred the solution of a concentration camp in Guantanamo. 35 The Council Committee set up by Resolution 1373 includes, in particular, a nominative, public exposure procedure for states that do not apply its demands in a suitable manner. This sort of ‘naming and shaming’ is rare in the United Nations and always taken as an outrage by the states that are the object of it. 34

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the current problems of the fight against the proliferation of WMD and against terrorism than a solution to it. It is thus clear that it does not completely address or respond to the questions associated with it. In reality it does not deal with any of them in depth. It is neither timely nor principled but seems to lie between the two. Reading it evokes the feeling of an object that is imperfectly anchored and incomplete. The desire to reach a general agreement, as well as the concern of the Member States not to sacrifice their own security interests, explains this phenomenon easily. Still, the Council, particularly the concerned permanent members, came to an agreement without too much difficulty. This agreement is a strong signal for the future, leaving open the possibility that the Resolution will provide a framework, both institutional and collective, for establishing reinforced measures that are more normative in character.

A. Floating Object Let us identify some of the central themes of Resolution 1540 that raise problems of precise definition: non-state actors (the only actors officially referred to, even if certain states, particularly France, would have liked a broader approach to proliferation); WMD and their means of delivery; and terrorism. There are also themes whose absence in this context is significant, namely the PSI and verification processes. i. Non-State Actors Non-state actors are the only ones who constitute the visible target of the Resolution—but they cannot be dealt with directly by the Council, as they cannot be named.36 It is therefore necessary to use states as intermediaries. In the absence of direct international action, it is their responsibility to carry out the Resolution’s stated obligations. The underlying sentiment of the Resolution is not one of suspecting the states themselves; on the contrary, it is a call for their participation in the enterprise. This makes it possible not to envision specific scenarios of state abuse, for example by North Korea, Iran, even Pakistan or others that might be tempted to proliferate or facilitate proliferation by other states. Such scenarios are beyond the framework of the present Resolution and are handled by other means. As the Resolution is not retroactive in nature, it also does not apply to the proliferation activity of certain Pakistani officials that was carried out without the government’s knowledge.37 36 Para 8 of the Preamble refers to non-state actors ‘identified in the UN list’ that was set up on the basis of a previous resolution, Resolution 1267 (1999), and ‘those to whom Resolution 1373 applies’. However, these references constitute examples, not a generic definition. 37 See the International Herald Tribune (3 and 4 September 2004). An informal network led by Pakistani scientist AQ Khan admitted to having aided proliferation activities, in particular in North Korea, Iran and Libya. Khan was, however, acquitted of any charges by the Pakistani

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As for these non-state actors, it is true that they were not, up to the present time, affected by interstate instruments or by pertinent decisions made by international organisations. The Resolution thus fills a void on this point. By demanding that their proliferating activities be identified, prevented and repressed at an internal level, it completes and reinforces the international treaties on the subject. But what does the Resolution mean by non-state actors? It does not propose a very precise definition: any ‘individual or entity not acting under the lawful authority of any state, conducting activities which come within the scope of the Resolution’. It is therefore left to national legislatures to give a more precise definition. For example, corporations are not mentioned explicitly outside of terrorist groups and networks;38 but it is difficult to exclude corporations or contractors, given that the text refers to brokerage activities, trans-shipment and re-export and even finance and transport (paragraph 3(c) and (d)). At a certain point, operations of this nature must come out of hiding, and this leads to relationships and eventually collusion with legally constituted firms.39 In reality, however, and we will come back to this, it is states that are mainly targeted by the Resolution, even beyond their obligation to take the required domestic measures. Proliferation is in fact very unlikely to occur without some form of public authority complicity or serious laxity within the state apparatus. It is the inability of individual states to control activities carried out within their territories that is a threat to international security.40 Such a state’s disposition toward such activities will become clear under Council scrutiny and will expose the state in question to measures that are not specifically set out by the Resolution. The same applies if a state does not implement the anticipated legal measures. Added to this is a virtual interstate legal dispute: if it appears that a state has, even through negligence, allowed prohibited activities to be carried out or has not suppressed them, can its international liability be called into question for illicit international acts? This kind of interstate disagreement, falling under the peaceful settlement of disputes resolution of differences, is also by now within the Council’s jurisdiction.

authorities. In South Africa, on the other hand, a South African businessman is being prosecuted for having participated in this network. In parallel, a South Korean scientist admitted to having carried out uranium enrichment, while the South Korean government affirms that they do not have a military nuclear capability. These activities all took place before Resolution 1540. 38 Germany, in particular, would have wanted the case of corporations to be studied. They managed to obtain that a monthly thematic debate by the Council be dedicated to this subject, but with no significant results. Corporations, like individuals, are however implicitly targeted by the Resolution. 39 See para 8, which calls upon ‘all states . . . to develop appropriate ways to work with and inform industry and the public regarding their obligations under such laws [that result from the Resolution]’. 40 It is the same for private networks: at their origin we find scientists who are closely linked to the state apparatus.

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ii. Weapons of Mass Destruction Weapons of mass destruction are no more clearly defined in Resolution 1540 than in general international law.41 They are merely named (nuclear, chemical and biological), probably by reference to their meaning in the relevant international conventions (most notably the NPT,42 the CWC and the BTWC). This list seems to conform with French desires to exclude radiological weapons. But in any case, no distinction is made within the Resolution between different WMD; they are treated as a group. While the prior discussions and negotiations show that states were largely concerned with nuclear weapons, these are not the most likely instruments of terrorist action. This seeming inconsistency underlines yet again the fact that it is states rather than non-state actors that are targeted. In addition, the Resolution makes reference to ‘the means of delivery’, which is defined as ‘missiles, rockets and other unmanned systems capable of delivering nuclear, chemical, or biological weapons, that are specially designed for such use’. Airplanes are excluded, perhaps due to the impossibility of efficient monitoring, but here again, we ask: can this type of delivery system be acquired or used without either state assistance or a serious defect within the state system? In a similar vein, the Resolution mentions (in the Preamble and in paragraphs 3 and 10 of the action plan) the ‘related materials’ of WMD, which are defined as ‘materials, equipment and technology covered by relevant multilateral treaties and arrangements, or included on national control lists, which could be used for the design, development, production or use of nuclear, chemical and biological weapons and their means of delivery’. This definition is thus largely functional and partially undetermined, as a national control list may not coincide with either the treaty lists or other national lists. Moreover, the Resolution does not make it possible to extend the authority of the pertinent treaties to states that are not party to the treaties. Certainly, an extensive a priori conception of related materials has been chosen. But making references in the definition—and multiple references at that—hardly sheds any light on the question. It could be one of the tasks of the Council Committee to homogenise and clarify this notion in paragraph 4. Paragraph 10 also invites state to ‘take cooperative action’ to prevent trafficking, particularly of related materials, which also implies a common definition.

41 As we know, the notion of WMD results from a distinction with classical weapons, not from an intrinsic definition. We can also question the homogeneity of a category that includes weapons of very different natures and effects. Moreover, at the juridical level, nuclear weapons are not illegal under international law—nor is necessarily their usage—which is the case with biological and chemical weapons. 42 We need to add the definition provided by the advisory opinion of 8 July 1996, that was cited earlier, but it does not necessarily have a customary value.

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iii. Terrorist Activities Terrorist activities are only in principle an object of the Resolution; they are not exactly subordinate but somewhat secondary to the fight against proliferation, which is set out as the first priority. ‘Terrorist activities’ are mentioned as early as the first point of the Preamble and are referred to in fifteen out of sixteen of these points, while terrorism is only specifically mentioned in two Preamble points and in only one paragraph of the action plan. This is understandable, to the extent that terrorism is more specifically dealt with in Resolution 1373, to which Resolution 1540 seems to be a complement in terms of proliferation. Moreover, though there are few references, they are strongly worded. In particular, the Preamble affirms ‘the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’. This formulation suited Russia, who remains attentive to the Chechnya problem. The eighth point of the Preamble refers to ‘those identified in the United Nations list established and maintained by the Committee established under Security Council Resolution 1267 and those to whom Resolution 1373 applies’—in other words, non-state actors engaged in terrorist activities. However, in paragraph 2 of the action plan, the acquisition of WMD is mentioned alongside the phrase ‘in particular terrorist purposes’. In other words, non-state actors are not the exclusive target. The issue of state proliferation thus overshadows all references to terrorism. iv. The Proliferation Security Initiative (PSI) The PSI is fundamentally a hidden objective of Resolution 1540. One of the inspirations of the Resolution was to universalise the PSI once it was developed within the framework of this ad hoc coalition, which does not include certain states, like Russia and China. But this aim is not made explicit in the Resolution, probably due to China’s objections. One particular concern of the PSI to which Council approval could have brought a rapid resolution is that of ship inspections in international waters. One of the problems of proliferation is how to monitor the transportation of materials: maritime containers are difficult to inspect due to sheer numbers, and ports are particularly vulnerable to terrorist attacks. The Law of the Seas does not allow a state to stop and search ships in international waters, apart from those flying its own flag.43 Under Chapter VII authorisation, an exemption could have been established for this kind of inspection. However, no exemption was established— although not because it would in practice lead to a sort of proliferation police power, which would mostly benefit the American navy, which is the 43 The exception being, as we know, ships carrying out acts of piracy—an exception encoded in Art 105 of the Montego Bay Convention.

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only one capable of carrying out inspections in the vast arena of international waters (rather like what happened in the nineteenth century when the British navy attempted to seize maritime control of slave trading in order to end it).44 In reality, the United States did not insist on this right as, because it would have meant that ships flying the American flag could be inspected by other states. In contrast, vague references to interstate cooperation (in paragraphs 9 and 10) allow them to negotiate bilateral agreements with various states in order to give the United States a right of inspection on ships that would have been eventual targets—in other words, allowing for inspection by the United States without reciprocity.45 The Resolution’s silence on this point permits a legal discrimination allowing for the consolidation of the American navy’s dominant position.46 v. The Absence of Verification Procedures Finally a word about another absence, namely the lack of verification procedures for the Resolution’s enforced measures. In this matter, France floated the idea of a body of international inspectors. Only the Council Committee can be considered the starting point for a verification procedure, but, as we have seen, it seems to be conceived more as a follow-up body than a monitoring body. The reticence on this subject has a dual origin. On one hand, there is increasing doubt regarding the efficiency of the existing conventional mechanisms, which are specific to each treaty; the United States in particular considers these mechanisms insufficient. The golden age of monitoring is over, and America’s attitude towards a verification protocol established by the BTWC, for example, has plainly demonstrated this. On the other hand, the unilateral, intrusive and coercive procedures specially established by the Security Council under Resolutions 687 and 1441 with regard to Iraq infamously encountered serious mishaps. Under these 44 At this time, the British treaty project to establish a universal access right to put an end to the slave trade (Treaty of 20 December 1841) encountered French opposition, despite conventions with the United Kingdom granting reciprocal access (Conventions of 1831 and 1833). France, under the July Monarchy, while accepting the principle of abolishment, did not intend through this act to allow the British navy to become the exclusive maritime policing force over commerce in the Atlantic. See F Guizot, Mémoires pour servir à l’histoire de mon temps, vol 4 (Paris, Michel Lévy frères, 1864) 418–54. 45 Even before Resolution 1540, the interception (through cooperation with Germany, Italy, and the United Kingdom) of a ship that was suspected of transporting nuclear-related material had shown the efficiency of such inspections. This seems to have contributed to forcing Libya to make its nuclear intentions known and thus avoid greater pressures. Within the framework of the PSI, different multinational exercises in international waters have been carried out since 2003 in order to develop and to show urbi et orbi, the capacity participants have to duly carry out inspections. 46 The extent of American naval power sometimes worries those living on the shores of semi-closed seas. Hence Russia and Turkey are keen to maintain the important role of the coastal states of the Black Sea in terms of security measures to be taken in the region. See Le Figaro, 11 September 2004.

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circumstances, what remains possible is national technical means (NTM), a technique that has always been at the heart of the monitoring and verification processes.47 Here again, American dominance is implicitly written into the facts.

B. A Strong Signal The Resolution’s strength lies primarily in the intervention of the Council— both in principle and through specific procedures—in the arena of arms limitation, which was previously the purview of conventional negotiations or, after its first extraordinary session devoted to disarmament in 1978, the General Assembly. The Resolution’s strength is then based on the measures it requests the Member States to take, measures that should be transparent, allowing for the identification of states refusing to cooperate. But this sort of intervention is a signal or a symbol, that is to say, an instrument that is richer in possibilities than is immediate clear. Given its deficiencies, the key question is how the difficulties of applying this mechanism for intervention will be met. On its own, the Resolution does not anticipate any automatic or pre-established response by the Council, so that the efficiency of the instrument will be largely dependent on the continuity of the support from its main crafters. In a way, it is a low-pressure, long-distance tool. i. Intervention by the Council Intervention by the Council is not, as we know, without precedent, but it has never taken this general shape, particularly in the arena of non-proliferation. The multilateralism its preparation was based on was far removed from both the Conference on Disarmament and the General Assembly, being wider in scope than that of the Conference on Disarmament48 and ultimately more narrow than that of the General Assembly. Unsurprisingly, the outcome is profoundly unequal, as the intervention mechanism is clearly based on the prevailing role of the permanent members—who just happen to be the only states recognised by the NPT as allowed to possess nuclear weapons. The inequality in international relations that this fact reintroduces is not limited to domination by the United States. Some states—Brazil, India, Pakistan and, more generally, the non-aligned movement—are not at all happy with this evolution, but they have not been able to mount a successful opposition. The Resolution’s partisans knew how to first separate then isolate those who could have opposed the Council’s intervention, and any chance of resistance was then dismantled before such states could come to an understanding.

47 S Sur, ‘Vérification en matière de désarmement’ (1998) 273 Recueil des cours de l’Académie de droit international 13–102. 48 See Dahan, ‘La Conférence du désarmement’ (above n 19).

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The content of the Resolution is also a move away from the hallowed UN texts on the subject, particularly the Final Document adopted by the Assembly at the last extraordinary session in 1978.49 That Document not only placed nuclear weapons at the heart of the disarmament process but, more importantly, proclaimed as its main objective the total elimination of nuclear weapons and chose international conventions as the means of achieving this. In contrast, the Resolution seems to substitute the Council for the Assembly in this regard, and we are thus seeing a sort of informal revision of the Final Document. As the Assembly has not been able to transform and update it over the last twenty-five years, the Council is undertaking to do so with Resolution 1540. Whether Resolution 1540 also experiences stalling as a result of the long-term desire of its initiators remains to be seen. But in any case, the Resolution is a good example of the internal evolution of the United Nations and the relative effacement of the Assembly vis-à-vis the Security Council. ii. The Transparency Imposed by the Measures The transparency imposed by the measures that states must take to prevent and repress attempts at proliferation carried out by non-state actors could be analysed in terms of a test of confidence and security in conformity with the classical system for these assessments since the Helsinki procedure.50 As in this system, it includes behavioural and advertising obligations. They are of this nature to the extent that they attempt to establish universal cooperation in order to prevent and repress the proliferation of WMD, particularly with regard to non-state actors. However, the measures possess another important characteristic, as they are not founded on a voluntary basis, thus allowing for the public identification of uncooperative states. In this way, the transparency requirement is in reality designed in a discriminatory spirit, as its implementation aims to distinguish between states that spontaneously and suitably fulfil their obligations and those that do not. If the failure to take the measures is due to administrative and technical difficulties, a state could benefit from the anticipated cooperation. For those states that maybe have something to hide, however, transparency helps to bring their hesitations to light. Transparency has thus become more a measure of distrust and protection with regard to recalcitrant states. First of all, it becomes possible to identify them, then it is possible to act against them. Problematic states can be identified at three levels. First, the negotiation of the Resolution itself was instructive. Despite the rhetoric offered by the Member States, analysis of their different positions revealed the reality of

49

See above n 20. See Y Ghebali, ‘Mesures de confiance de la CSCE’, UNIDIR Research Paper 3 (UNIDIR, 1989). 50

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their attitudes—perhaps mostly regarding proliferation by states rather than by non-state actors, but as we have seen, the issues are not unrelated. Second, study of the legal and administrative measure effectively taken to implement the Resolution can lead to appreciation of their content and efficiency. Finally and most decisively, recalcitrant states can be identified by seeing how effectively the states in question apply the measures. Certainly the Council Committee is not a monitoring committee, but the reports submitted to it provide interested states with the necessary basis to draw certain conclusions from insufficient or deviant behaviour. iii. The Potential of the Resolution The potential of the Resolution is implied by paragraphs 11 and 12. The Council ‘intends to monitor closely’ its implementation, ‘which may be required to this end’ and ‘decides to remain seized of the matter’. This vague formulation shows the minimal and the maximal possibilities. At the very least, in case of a lapse, unilateral actions, in particular military actions, in case of a lapse, are to be excluded. Moreover, if the Council does not exercise its responsibility by taking action in the face of a failure to implement the Resolution, it would amount to a practical abandonment of the Resolution and a weakening of the credibility it is attempting to reconstitute. If the Resolution is viewed optimistically, the Council emerges as capable not only of taking coercive measures against recalcitrant states but, in a larger context, of widening and reinforcing the anti-proliferation plan that it is undertaking to define. It is clear that Resolution 1540 is only a weak reflection of Resolution 1373, and in this respect it calls for follow-up measures, which have only been touched upon in its text. While Resolution 1373 represented a breakthrough, Resolution 1540 is more like a small step in the complicated legal terrain of non-proliferation. The future of Resolution 1540 will be particularly but not exclusively dependent on the manner in which the United States acts within its framework. It is now an element of the ‘toolbox’ that they like to keep close at hand. The obstacle is that later operational actions will need new resolutions from the Council, and they could become urgent. The advantage is that the Resolution provides a normative, obligatory and universal basis for international action, which is, by consequence, legitimate. American specialists often remain sceptical about the undertaking.51 In terms of the fight against

51 LJ Korb, ‘Nuclear Proliferation: Bush’s Policy Endangers US Security’, International Herald Tribune, 9 August 2004, 8; A Carter, ‘How to Stop the Spread of Nuclear Weapons’ (Sept–Oct 2004) Foreign Affairs 72–85. An article by J Bolton seems to be a response to this: ‘An All-out War on Proliferation’ Financial Times, 6 September 2004. Highlighting the different initiatives of George W Bush’s administration, it only mentions Resolution 1540 briefly and insists more upon the PSI and the Global Partnership against the Spread of Weapons and Materials of Mass Destruction.

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proliferation, they tend to consider the role of the United Nations and, at a larger level, the legal instruments, fairly unfavourably. Europeans for their part have defined an ‘EU Strategy against the Proliferation of WMD’ (2003) that should be the basis for complementary and innovative initiatives, as surely the question is too serious to be left to the discretion of a single state, however powerful it might be.

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21 Post-September 11 UN Security Council Counter-Terrorism Measures*

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HE ATTACKS OF SEPTEMBER 11, 2001 did not just bring about the collapse of the twin towers of the World Trade Center in New York and the partial destruction of the Pentagon in Washington. They provoked reactions from the UN Security Council that were as swift as they were decisive. Condemning the ‘horrifying terrorist attacks’, the Council unanimously passed Resolution 1368 on 12 September, just one day later.1 Resolution 1373, much more ambitious and wider in scope, was also drawn up with great urgency and adopted under the same conditions on 28 September.2 A period of 18 months then passed before the adoption of Resolution 1540, which, while comparable in its ambition and normative breakthroughs to Resolution 1373, has been more difficult to put into practice.3 The three Resolutions do not have the same aim. Resolution 1368 deals with the expected reaction from the United States and seeks to manage it. Its real significance actually lies in a passage of the Preamble in which the Council recognises ‘the inherent right of individual or collective self-defence in accordance with the Charter’. The much more developed and directive Resolution 1373 sets forth a set of measures for states to prevent and combat terrorism by legislative, administrative and judiciary means—in other words, generally coercive civil means rather than the use of armed force. It calls upon the adopting states to cooperate in order to bring to justice ‘the authors, organisers and sponsors’ of terrorist acts and their accomplices; its sweeping turns of phrase, much like those passages derived from Resolution 1269, are easy to get caught up in. Resolution 1540 echoes the focus on

* Extracted from M Glennon and S Sur (eds), Terrorisme et droit international, Centre de recherche de l’Académie de droit international de La Haye series (Dordrecht, Martinus Nijhoff Publishers, 2007) 55–72. 1 Paragraph 1 states: ‘The Council . . . unequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September . . . and regards such acts, like any acts of international terrorism, as a threat to international peace and security.’ 2 On this Resolution, see S Sur, Le Conseil de sécurité dans l’après-11 septembre, Global Understanding Series (Paris, LGDJ, 2005). 3 S Sur, ‘La Résolution 1540 . . . entre la prolifération des ADM, le terrorisme et les acteurs non étatiques’ (2004) Revue générale de droit international public 855–82.

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coercive civil means and attaches the same spirit to hindering the acquisition of weapons of mass destruction by terrorist organisations. An entire battery of measures has thus been put into place requiring coordinated action between the Council and the UN Member States.4 The three Resolutions demonstrate in the most spectacular manner Security Council action against terrorism post-September 11. Others could be cited,5 for the fight against terrorism has since been a centrepiece in the Council’s agenda, and it has sought to clarify or complete existing elements of this agenda or to set them into motion by new decisions. However, the three Resolutions form the main standards of international action in the matter; Resolutions 1373 and 1540 in particular frame these standards—by the depth and breadth of their contents. Although separate from these post-September 11 actions, the creation of a special tribunal to investigate the Hariri assassination complements this normative triad with a return to legal prosecution within the framework of maintenance of peace and security—something that would have been difficult to imagine without the normative precursors and breakthroughs of the Hariri tribunal. Each of the three Resolutions presents its own characteristics and deserves separate analysis due to the particular actions or punishments with regard to terrorist acts that its regime permits. The first responds to the immediacy of terrorist action and seeks to manage the reactions of the states that are victim, proposing a viable legal framework as recourse. The second Resolution simultaneously takes into account the present and the future, as it concerns both the struggle against current terrorist networks and anticipated future actions. The third seems to be of a somewhat hypothetical nature, as it has yet to be established that, apart from isolated and limited cases, terrorist networks are in possession of weapons of mass destruction or the dangerous materials that compose them. It is more related to the war against nuclear arms proliferation, and it is on this level that the discussions were oriented before its adoption. What the three do have in common is that they were unanimously adopted, within the framework of the maintenance of international peace and security, under a Chapter VII mandate.

I. Resolution 1368 (12 September 2001) and Self-Defence Against Acts of Terrorism A. Conditions for the Recognition of Self-Defence by the Security Council By mentioning in the Preamble of the Resolution ‘the inherent right of individual or collective self-defence in accordance with the Charter’, the 4 While the Security Council is now at the heart of this enterprise, other authorities such as the G8 and regional organisations—most significantly, the European Union—have also taken or recommended diverse measures. 5 See, for example, Resolutions 1390 (2001), 1455 (2003) and 1526 (2004).

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Council refers implicitly to Article 51, which is located in Chapter VII. Selfdefence is thus itself an instrument of collective security and in no way an exception to the general prohibition of the recourse to force in international relations.6 Under exceptional circumstances the Council recognises such situations, although such recognition is not necessary for an act of legitimate self-defence to occur. In fact, Article 51 indicates that ‘nothing in the present Charter shall impair the inherent right of individual or collective self-defence’,7 and this includes Article 39, which is related to the right of the Council to determine what constitutes an act of aggression. In other words, a state qualifies, as a precautionary measure, of and by itself if an act of aggression has been committed against it. Consequently, the state can act on the condition of informing the Council immediately of all actions taken and until the Council ‘has taken measures necessary to maintain international peace and security’. The Council could thus invalidate the justifications taken by the state, in order to substitute its own justifications and its own means to address the situation. If it does not do so, one cannot automatically draw the conclusion that it implicitly validates the behaviour of the state, especially if the Council is paralysed by one or several vetoes. In order to appreciate the legal ramifications of such a situation, it is necessary to take into account the positions of other states, for self-defence is not just a Charter-based right; it is also a tenet of customary international law,8 which all states are allowed to interpret for themselves as long as the Council has not given a verdict. On the other hand, if the Council has recognised that an act of aggression has occurred, it is hard to imagine how a Member State could contest this interpretation or that an international ruling could challenge it—but this is another debate, which will be discussed again later, precisely within the context of Resolution 1368.

B Renunciation or Control by the Council By limiting itself to noting, without qualification, the right to individual or collective self-defence, does not the Council simply wash its hands of the aftermath once this right has been granted? And does it not then renounce its Charter-based responsibilities to take all necessary measures? Furthermore, by specifying that this right of self-defence is collective just as well as individual, is not the Security Council renouncing its collective security role, not only on a military level but also on an institutional level, as it seems to delegate this responsibility to a collective defence community (in this case, NATO) to lead the action? 6

Sur, Le Conseil de sécurité dans l’après-11 septembre (above n 2). ‘Droit naturel de légitime défense, individuelle ou collective’ in the French text, and ‘inherent right of individual or collective self defence’ in the English text. 8 Case concerning Military and Paramilitary Activities in and against Nicaragua ( Nicaragua v USA) , Merits, Judgment of 27 June 1986, ICJ Reports, 14–546. 7

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This supposition is not without merit since in the course of the last several years, NATO has confirmed its desire to transform itself into or at least to act as a collective security community, eschewing the idea of only collective defence. This was demonstrated during the Kosovo affair in 1999, when the air strikes against Serbia were made by a coalition of NATO Member States on their own accord, without Security Council authorisation.9 After September 11, NATO Members declared themselves ready to invoke Article 5 of the treaty, regarding collective self-defence in the event of aggression against one of the member parties. This renunciation of collective security action also seems to be confirmed by the fact that in the wake of the September 11 events, the Council neither called for military action nor interfered with the action of the countries that joined the United States against the Taliban regime in Afghanistan for its participation and collusion in the attacks. Thus, it admitted an apparently unconditional and unlimited right of recourse to armed force by the United States, even larger than the one accorded at the time of the first Gulf War in 1990–91, when the Council had authorised ‘states cooperating with Kuwait’ to ‘use all the necessary means’ for its liberation.10 This first impression, however, is deceiving. In reality, the Council acts rather skilfully, considering the feeble military means at its disposal. We will return briefly to the controversy surrounding the principle invoked in this instance to address the room for the recourse to self-defence. The Council could hardly have had any doubts about the nature of the American reaction, ie, it would not be limited to a police enquiry and classic legal measure and would certainly use armed force. The precedents of the 1998 attacks against the American embassies in Kenya and Tanzania11 and even the Kosovo affair clearly showed this. As soon as it was decided that the Council could not act with its own forces nor hastily organise and direct a coalition, it then had the choice between laissez-faire and ignoring a unilateral reaction (even in the context of a coalition) or providing a legal framework that would put all subsequent actions back within the scope of the Charter. With Resolution 1368 it chose the latter, thereby immediately making clear its involvement in the situation. As for legitimate collective defence, it is not a concession of the Council but a consequence and reality of the Charter itself. After all, the United States did not ask for the Resolution anymore than it did the collective 9 See Y Nouvel, ‘La position du Conseil de sécurité face à l’action militaire engagée par l’OTAN et ses Etats membres au Kosovo’ (1999) Annuaire français de droit international 292–307; and S Sur, ‘Le Recours à la force dans l’affaire du Kosovo et le droit international’ (2000) 22 Les notes de l’IFRI. 10 Resolution 679 (28 November 1990). 11 Car bombings targeted the US embassies on 7 August 1998 and were followed by US air strikes against the supposed terrorists bases of operations responsible for the attacks in the Sudan and Afghanistan on 21 August 1998. The Security Council condemned the terrorist attacks in Resolution 1193 (13 August 1998).

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NATO action, to which it objected at first before in fact calling for it as it became faced with increasing difficulties in stabilising its reconstruction and peacekeeping efforts in Afghanistan over the years. Adopting a resolution, in particular Resolution 1368, offered a three-fold advantage for the Council: first, American action was placed within a pre-established international legal framework, in contrast to previous unilateral military actions; in addition, Article 51 outlined the obligation of states to immediately report on measures taken in this context—a practice that has indeed been established; and finally, as a result, such measures could be held up to the customary international law conception of self-defence, particularly with regards to proportionality and the respect of international humanitarian law.

C. Doctrinal Controversy Relating to Resolution 1368 On the state level, the text of Resolution 1368 and the conditions of its passing were generally accepted, or at least sceptical states did not publicise their reservations or their critiques. On the doctrinal level, however, Resolution 1368 aroused several controversies.12 The major point of contention centred on the question of terrorism, since the Resolution directly affects the measures by which states address terrorist attacks at the international level. We may break up the elements of this controversy by distinguishing on one hand that which concerns the understanding of a terrorist attack itself and on the other the consequences of its aftermath. The first involves the principle behind the act; while the second focuses more on the manner in which the act was carried out.

12 See in particular L Condorelli, ‘Les attentats du 11 septembre et leurs suites: où va le droit international?’ (2001) Revue générale de droit international public 841; T Frank, ‘Terrorism and the Right of Self-defence’ (2001) American Journal of International Law 840; and J Verhoeven, ‘Les étirements de la légitime défense’ (2002) Annuaire français de droit international 61. Generally speaking, these doctrinal controversies—like the one concerning the normative power of the Security Council—centre around the absence of judicial review for Council decisions. While in part sensible according to doctrine, the ICJ has always been remarkably and thoroughly prudent on this matter. In the Lockerbie case, for example, Libya appealed to the Court over a disagreement relating to the contradiction between Security Council resolutions demanding that certain Libyan nationals be handed over and covenants concerning the struggle against aircraft hijacking. The Court initially considered that the Council decisions prevailed over the covenants according to Art 103 of the Charter, but the intervening agreement reached between the concerned countries meant the case was withdrawn. On the other hand, a European Union court considered that it could review Council resolutions on the basis of jus cogens—which of course brings up the difficult problems of compatibility with the Charter: TPI UE, Ahmed Ali Yussuf (21 September 2005); Journal official de l’Union européenne (12 November 2005). See M Bedjaoui, Nouvel ordre mondial et contrôle de la légalité des décisions du Conseil de sécurité (Brussels, Bruylant, 1994); G Guillaume, ‘Quel contrôle sur les mesures de sécurité collective’ in Société française de droit international (ed), Les Métamorphoses de la sécurité collective (Paris, Pedone, 2005) 241–52.

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i. On the Notion of Aggression On the notion of aggression, it was originally debated whether the September 11 attacks should be qualified as an act of aggression or as an armed attack. Crashing civilian passenger airplanes into private and public buildings certainly constituted criminal breach of internal security of the state, a violation of the state’s internal law, and the acts were without a doubt internationally condemnable terrorist attacks. However, they could not be linked up to the usual criteria of attack that are defined in General Assembly Resolution 3314.13 Moreover, the acts did not constitute armed aggression in the sense of the Charter (armed attack), since there was strictly speaking no recourse to arms as they are traditionally understood. Finally, the aggression did not come from a state but from terrorist networks acting of their own accord; certainly the territory of several states were used as bases for preparation, training and even withdrawal, but these states were not directly involved in the organisation of the networks. The International Court of Justice (ICJ), in an ensuing advisory opinion, specified that self-defence as recognised by the Charter is legal in the event of a state-led attack,14 seeming thus to challenge the legal foundation of Resolution 1368—possibly the first instance of a judicial body reviewing Security Council resolutions, albeit in an indirect fashion. Those who argue either partially or completely in support of such an opinion believe that the American reactions ought to have remained either police or legal actions, relying on interstate cooperation to bring the authors of these criminal acts to domestic-based justice. After all, this is what the operational part of Resolution 1368 demands, particularly in paragraph 3. One might add that this is what other states that have subsequently been victim of attacks of the same nature—namely Spain and the United Kingdom—have tried to do. 13 Resolution 3314 (XXIX) on the definition of aggression has a Preamble and eight Articles and uses both the method of abstract definition and an open-ended list of acts. It does not bind the Security Council. Regarding certain points in the case of the Military and Paramilitary Activities in and against Nicaragua (above n 8), the ICJ ruled on customary law. In the same case, the Court ruled that a certain number of cross-border acts and attacks from uncontrolled forces supported by Nicaragua did not justify the practice of collective selfdefence by the United States (Plan §2). The acts and attacks did constitute illicit uses of force, but as such only justified countermeasures, not self-defence. In the short term, one can ask if this precedent was not exceeded with Resolution 1368 and also if it will be maintained in the face of present practices concerning terrorism. More generally, it can be noted that the Court in this way established a gradation depending on the levels of force used, following a logic that one finds in the 8 July 1996 advisory opinion on ‘The Legality of the Threat or the Use of Nuclear Weapons’, since the Court drew upon the hypothesis of self-defence in which the very survival of the state is at stake. This gradation seems to come under the principle of proportionality rather than expanding the right to self-defence or any of its inherent complexities, which do not figure in the Charter. 14 ICJ Advisory Opinion, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004). The Court declares in para 139 that ‘Article 51 of the Charter thus recognises the existence of an inherent right to self-defence in case of armed attack by one state against another state.’

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None of these arguments is convincing enough, and Resolution 1368 represents a decisive qualitative leap in the struggle against terrorism both in itself and as the basis of later Council actions. As for the notion of aggression, we know that the Charter does not define it, and General Assembly Resolution 3374 has only an advisory/informational character. It does not, incidentally, bind the Security Council as paragraph 4 recognises—and in any case would not be able to do so. The Council applies the Charter and not the Resolutions of the General Assembly, which is not its hierarchical senior and does not have a more extensive juridical capacity than its own to interpret the Charter, especially with regard to its delegated responsibilities. The Charter grants the Council the right to qualify at its own discretion, acts and situations that can be constituted as aggression. It does so on a case-by-case basis—and in this case, it can be said that it has not in the least established the doctrine of preventive war, but it responded to a clear and present situation. As for armed aggression, most criminal law systems are familiar with the distinction between weapons-by-design/nature and weapons-by-use—and it is scarcely disputable that the aircraft hijacked on September 11 were used as weapons. A number of precedents illustrate that several states, confronted with situations if not identical at least presenting common elements, have—without objection—reacted under the aegis of self-defence and therefore to aggression. The United States have done it themselves on several occasions: after the taking of American diplomats as hostages in Teheran; following the failed Iraqi assassination attempt against President George W Bush while he was in Kuwait; and after the attacks targeting their embassies in Kenya and Tanzania. In this last case, the US responses were authorised ahead of time by the Council—and as such, the seeds of Resolution 1368 already were planted.15 There remains the question of non-state aggression: the opinion that an attack by a non-state actor is not an act of aggression under international law—and therefore cannot constitute a basis for self-defence—merits consideration, as much in law as in practice. In law, this argument rests on the ICJ dictum cited earlier, or again on the consideration that the Charter only concerns the relations between states. None of these elements stands up to 15 Resolution 1193 (1998), which condemns the Nairobi and Dar-es-Salaam attacks, authorises the American reactions. It is dated 13 August, and the air strikes against Sudan and Afghanistan took place on 21 August. These methods do not carry fewer risks of eroding the basis of international law. To cite but one example, following the assassination of a German ambassador in China in 1900, a multinational European military team led a retaliatory expedition, under the command of a German general, the Count de Waldersee, with English and French participation. In the context of the Boxer Rebellion, the expedition became a question of fighting terrorism practiced against Western targets in a failing state that was more or less complicit with the terrorists. We can either consider that we have returned to a form of colonial reprisals under the aegis of the United Nations or congratulate ourselves that the struggle against terrorism is now within the context of and made legitimate by an international body.

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scrutiny. First of all, at the level of the texts, Article 51 of the Charter mentions ‘armed attack’ without other specification. By specifying that the attack must come from a state, the Court adds two words to the Charter, and it is not clear what authorises it to do so. Its mandate consists in settling legal disputes between states in accordance with international law and giving advisory opinions on legal questions—but not in revising the Charter. In practice, Resolution 1368 directly counters both the ICJ position and accepted state practice. Adopted under Chapter VII, its authority is higher than that of an advisory opinion’s ancillary dictum. As for state practice, it can be confirmed that aggression is not necessarily only state-borne. During the summer of 2006 Israeli attack in Lebanon, following the Hezbollah rocket launches and attacks, other states did not collectively dispute Israel’s right to exercise self-defence—which Israel specified were not meant to target the Lebanese state but to respond to terrorist acts.16 Criticism was rather directed more along the principle of proportionality, a number of states considering the degree of the Israeli response to be too severe vis-àvis the scale of the Hezbollah attacks. Within most contexts, it is clear that self-defence against non-state aggression runs the risk of occurring within a state’s territory—ruling out the hypothesis of attacks in international arenas, particularly air and maritime. But then the state whose territory will be the target of self-defence measures must be an accomplice, a failed or failing state, or incapable of controlling the acts of terrorist networks with its territory. ii. Implementing the Resolution Regarding the implementation of the Resolution, we can position ourselves on several levels of analysis with variable conclusions depending on each. The first is at the military level. The conditions under which the United States led a limited coalition of states in an armed attack against Afghanistan are quite clear: the United States had asked Afghan authorities to hand over those suspected to be at the origin of the September 11 attacks, and the retaliatory attack came following subsequent Afghan refusal. While this led to the rapid fall of the Taliban regime and to the establishment of new governing authorities according to an internationally accepted procedure, it did not lead to the capture of those presumed responsible for the initial terrorist attack. This situation continues today, and Afghanistan has found neither stability 16 In contrast to the September 11 attacks, during these events in the Middle East, the Council carefully avoided making a statement on terrorist acts and on the Israeli invocation of legitimate self-defence. Resolution 1701 (11 August 2006), which does not refer to Chapter VII and reinforces the UN Interim Force in Lebanon (UNIFIL), evokes ‘the escalation of hostilities’, the ‘Hezbollah attacks’ and ‘violence’, insisting on the necessity of ‘an immediate remedy to the causes that gave rise to the present crisis’. The Resolution does not come down on the side of either terrorism or legitimate self-defence, settling for a more modest and conciliatory conception of peacekeeping operations.

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nor peace. The initial military action was carried out by the coalition of the willing; the United Nations and NATO were then interjected as a peacekeeping force, which tends to mean more coercive use of force. Knowing whether the US-reported information on the measures taken was satisfactory from the point of view of Article 51 is not an easy matter. Some information was given, and neither the Council nor the Member States apparently asked for more. On the other hand, the amount of respect paid to humanitarian rights during combat operations, especially the initial operations, is dubious. The Council seems to have clearly renounced intervening on the range of military operations, especially regarding proportionality and the respect of humanitarian rights. On another level, the pursuit and bringing to justice of those responsible for terrorism, the failure is undeniably clear. As such, Resolution 1368 remained a dead-letter affair. The security/military approach not only gained the upper hand vis-à-vis the legal approach but in this case was entirely substituted for the legal approach, to the extent that the exercise the right of self-defence was left entirely to the discretion of the states involved. A third level remains, concerning the measures that the Council is called on to take itself, based on its principal mission. The right to do so has not been relinquished by the Council—in fact, quite the contrary;17 it is moreover supported by Article 51. Thus for the Council, the most significant consequence of implementing Resolution 1368 is Resolution 1373 and, to a lesser degree, Resolution 1540.

II. Resolution 1373 (28 September 2001): Imposing a Comprehensive Counter-Terrorism Program At first glance, the differences between Resolutions 1368 and 1373 are striking. The first is brief and limits itself to foreign (non-domestic) measures— self-defence, legal cooperation—aimed at a specific event. Resolution 1373, however, is conceived as a comprehensive program, incomparably more evolved and detailed, that strives to be abstract in terms of definition and content. While the former Resolution focuses on rights that favour one state (in this case the United States) and those expressing solidarity with it, the second establishes obligations weighing equally upon all states. The former relies on the goodwill of interested states; the second designates a monitoring and surveillance system within a coercive framework. It is clear that with Resolution 1373 the Council sought to seize the initiative again and control the war against terrorism—without limiting itself to terrorism that is qualified as international. Consider the skilful evolution of 17 Paragraph 5 of Resolution 1368 states that the Council ‘expresses its readiness to take all necessary steps to respond to the terrorist attacks of 11 September 2001 and to combat all forms of terrorism’.

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the Council toward the issue. While it was slow in seizing the issue of terrorism, from September 11 onward its efforts consisted of placing the actions of states under its control. As such, September 11 is the political basis for Resolution 1373 just as much as it is for Resolution 1368. Legal equivalents, their foundations are the same: the maintenance or reestablishment of international peace and security on one hand, Article 51 and legitimate self-defence on the other—both of which are intentionally mentioned in the same terms in Resolution 1373. In this way, it seems clear that Article 51, far from divesting the Council of authority and far from putting aside mechanisms of collective security, has in reality become a strengthened instrument for collective security, since the Council on this basis can ‘take at any time such action as it deems necessary in order to maintain or restore international peace and security’.18 Thus the Council’s reinforced powers can be seen simultaneously at the preventative (maintenance) and the reactive (re-establishment) levels. Under the circumstances, it has adopted a comprehensive program for combating terrorism conducted by non-state actors, compulsory for all states and under its own supervision.

A. A Non-Military Program The non-military aspect of Resolution 1373 is again a departure from the preceding Resolution. The Council, weak at the military level, can take advantage of its jurisdictional reach—the character of which remains truly undefined—to adopt measures that are innovative as far as judicial normsetting (law-making), in particular regarding cooperation between states and collaboration with international organisations. In this arena, the Council is on more familiar grounds, having polished the use of its powers. It does not go so far as to create new institutions, for example an international criminal court, which could have responded to the oft asserted concern to enforce suppression measures against those responsible for terrorist acts. In fact, several years before the adoption of Resolution 1373, the convention instituting the International Criminal Court failed to include terrorism in the list of crimes under its jurisdiction, and this shortcoming could probably not have been offset in the framework of a Council resolution, all the more so because the preceding Resolutions establishing special criminal tribunals (ie, the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)) had also singled out terrorist activities as special cases. On this front as on others, Resolution 1373 takes particular care to anticipate the exercise of Member 18 Art 51 thus carries an autonomous basis of action for the Security Council, which is even broader and more indeterminate than those of Arts 41 or 42. See Sur, Le Conseil de sécurité dans l’après-11 septembre (above n 2).

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State criminal competences. The Resolution thus refers back to classic forms of legal cooperation, such as already recommended by previous Resolutions. Here again we see more evidence of a security approach to terrorism rather than a legal approach.

B. A Comprehensive Program Despite the rapidity with which Resolution 1373 was adopted (a fortnight), the scope and diversity of measures indicate that its provisions were not conceived under the pressure of the moment but are rather based on previously existing projects, particularly international conventions.19 It assumes a three-fold effect of acceleration, obligation and universalisation. Of the nine paragraphs composing it, four are operational, though each one is detailed and rich in content, in contrast to Resolution 1368. Of the four paragraphs in question, three contain decisions; the first two (paragraph 1) and (paragraph 2) are addressed to all states, while the third (paragraph 6) concerns the organisation of the Council and establishes a committee responsible for following the implementation of the Resolution. Several types of measures are demanded of states: internal measures (legislative, regulatory and administrative) (paragraph 1); international cooperation, through the exchange of intelligence and assisting other states in terrorismrelated criminal enquiries; and finally, reporting to the Security Council within ninety days of the Resolution’s adoption. The actions called for in paragraph 3 also require international cooperation, exchanges of information, participation in relevant international conventions, as well as tighter border controls and vigilant surveillance of people having or seeking the status of refugee. There are several dimensions to the objectives of these prescriptions, particularly regarding the insistence on monitoring and the prohibition of terrorism financing. The Resolution seeks to universalise the prosecution of terrorists by states and to prevent, through administrative and policing measures, terrorist cell formation and attack planning. The Resolution also highlights ‘the close connection between international terrorism and transnational organised crime’ (paragraph 4). In short, states must mobilise their domestic agencies so that their territories are not used to organise, prepare or carry out terrorist acts; and they must cooperate with other states to this end, all the while reporting to the Council.

C. A Compulsory Program The decision-making part of Resolution 1373 is the most important. As we noted, these decisions broadly affect Member State domestic legal spheres. 19 The Council re-employed in particular certain arrangements from the International Convention on the Suppression of Terrorism Financing, 9 December 1999.

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It is not simply a matter of governing their international conduct but of directing, in a compulsory manner, the organisation of their internal legal systems—which poses certain legal problems concerning the relations between international law on the one hand and domestic law, constitutional schemes, legal orders and Council resolutions on the other hand. The issue concerns not just criminal law but also systems of banking transactions and privacy, the status of refugees, asylum rights and border policing. The Council is in compliance with its Charter rights to bypass national sovereignty rights as guaranteed by Article 2, paragraph 7 of the Charter and can therefore penetrate quite far into a state’s domestic legal domain. Individuals, not just public authorities, are targeted by these obligations, particularly in the financial realm. Public authorities must, in particular, freeze funds that might be used for terrorist ends, watch that forged travel documents are not put into circulation and, more generally, abstain from giving any aid whatsoever to entities or persons involved in terrorist networks or activities. Such actions are intended to deprive terrorist networks of their funding, international contacts and communications, so that they cannot use the various legislative and other avenues available to them within states to hide their activities. However, beyond this, there is a certain burgeoning mistrust of states themselves—at least of some of them, as their shortcomings are suspected to be signs of tacit tolerance of these networks and their activities. As such, there is a state-monitoring mechanism to the Resolution, which we will come back to later. There remains a question of legal principle that is worth discussing. By adopting such intrusive measures, the Council, it was said, is in compliance with the Charter, since Article 2, paragraph 7 and the exception of national sovereignty do not apply to resolutions passed under Chapter VII authorisation. But these measures are general in scope, apply to all states and are permanent, since there is no limit indicated for their expiration, nor is there any condition foreseen for them to end. Does the Council not then exceed its Charter-based powers, which are to be exercised during particular situations jeopardising international peace and security and which ultimately should end once the situations are resolved? Is it not then behaving as an international lawmaker,20 unilaterally and authoritatively decreeing measures that would normally involve conventions, be subject to the particular and individual consent of each state and consist of a contractual instead of a legislative nature? Through a sort of legal kidnapping, a creeping juridical coup d’état, will the Council have instituted itself as an international legislator? Even further, does this pseudo-legislation express the collective legal dictatorship of a small group of Security Council Member States, in particular its permanent members? The legal question then doubles as a political 20 S Szurek, ‘La lutte internationale contre le terrorisme sous l’empire du Chap VII: un laboratoire normatif ’ (2005) Revue générale de droit international public 5.

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controversy—a controversy that emerged even more fully within the framework of Resolution 1540 in the context of weapons of mass destruction. While unable to examine Security Council legislation here completely, some observations on the issue will allow for a contextualisation and moreover a reformulation of the questions. At first it seems inaccurate to consider the Council as a legislative body, as it limits itself to exercising a power of injunction, asking states to apply their orders domestically, but not by establishing norms itself. When it asks states to make provisions for the suppression of terrorist activities, they have the choice of the degree their criminalisation, of their content, of their nature, and of their punishment. The shield of domestic law prevents the Council from imposing directly binding obligations, and the situation is more comparable to directives of community law than to international legislation. It would be more appropriate to speak of a normative power than of a legislative authority. But is this normative power broken up, since it can be effective only through domestic implementation measures?21 As far as the permanent nature of measures is concerned, these three Resolutions are neither the first nor the only ones of this nature to be passed. Resolution 687 on Iraq (3 April 1991) has for instance subjected that country to prohibitions and constraints of an indeterminate duration, which will only come to an end with a new Council resolution.22 Its general objective is to respond to the indefinite and diffuse nature of the terrorist threat. It is true that the Council only rarely exercises its preventative duties, as it does in this case. On the other hand, preventative measures may also be of a general nature. The real legal question then is rather whether or not the Council acted within the framework of the Charter, which includes a power of injunction for the Council with regard to Member States. The Council only rarely mentions the Articles on which it constitutes its authority.23 Incidentally, it could just as well rely on Article 41 as on Article 51. To the extent that self-defence is targeted by Resolution 1373, this may be the preferable Article, as it implies a legal measure of preventive self-defence that is exclusively exercised by the Council, under its authority and without the use of armed force. 21 Regarding implementation measures, regional organisations may also have jurisdiction. This is the way that the European Union incorporated a framework of measures before and after September 11. See I Thomas, ‘La mise en oeuvre en droit européen des dispositions internationales de lutte contre le terrorisme’ (2004) Revue générale de droit international public 463. The European Union also intervened for the reports that states must submit to the Security Council according to Resolution 1373. 22 S Sur, ‘La Résolution 687 (1991) du Conseil de sécurité dans l’affaire du Golfe: problèmes de rétablissement et de garantie de la paix’ (1991) Annuaire français de droit international 25–97. 23 Recently, however, the Council mentioned on several occasions Art 41 (measures not involving the use of armed force) in order to indicate clearly that it did not mean to authorise, directly or indirectly, recourse to armed force, and to prevent the American interpretation of prior resolutions imposing coercive measures on Iraq from serving as precedent. See, for example, Resolution 1718 (14 October 2006), imposing measures against North Korea.

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D. A Supervised Program One of the particularities of Resolution 1373 is to provide for its own follow-up mechanism—which incidentally is more a matter of monitoring. Composed of all the Council members, a committee is established for an indeterminate period. It must define its tasks within a period of 30 days (paragraphs 6 and 7). It is by no means merely a symbolic organ: within 90 days it must receive reports from Member States on measures that they have taken and must evaluate these responses with reference not only to actions taken but also to the revival of any existing measures. More broadly, it can draw up an international directory of domestic legal systems and their levels of commitment in the war against terrorism. In practice, this Committee has had great authority. The existence of the Committee and its modes of functioning illustrate in particular one of the ideas implicitly contained in the Resolution: beyond the equal treatment of all states, it allows for several categories of distinction among states, according to each state’s diligence in applying the measures provided. First, there are those states that have the willingness and the means, both legal and material, to take these measures and implement them; then there are those that are willing but do not have the means. The necessary help to remedy the situation can be provided, and their legislation can be refined; in this respect the choice of normative models is not indifferent, and one could favour either a common law or a civil law legal system (such that competitiveness between legal systems becomes a by-product of the Resolution). Finally, there are those states that are reluctant or delay taking the required measures and provide only incomplete reports or none at all; they can be identified and singled out as not contributing sufficiently to the fight against terrorism, put on formal notice to show more zeal and eventually accused of complacency with regards to terrorist networks, which would in turn allow for the exercise of diplomatic and political pressure. Placing all Member States under its surveillance in areas pertaining to their domestic jurisdiction is an innovation of Resolution 1373, and it has led to well-established practice.

III. Resolution 1540 (20 April 2004): Terrorism and the Proliferation of Weapons of Mass Destruction At first glance, Resolution 1540 is an extension of the measures decided upon by Resolution 1373 and completes them in one particular area. In fact, it draws upon paragraph 4 of Resolution 1373, in which the Council noted ‘with concern the close connection between international terrorism . . . and illegal movement of nuclear, chemical, biological and other potentially deadly materials’, all the while limiting itself to recommending better coordination at all levels. Also a Chapter VII resolution, 1540 applies the same

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conditions for all states, imposing both national and international measures. On these points it is more precise than its predecessor, specifying the technical measures demanded of the states. It is made up of the same mix of decisions and recommendations and creates a monitoring committee as well. The differences between the two Resolutions are, however, significant. First, the manner in which they were drawn up: Resolution 1373, as noted above, was drafted quickly and approved unanimously without a problem; Resolution 1540 took much longer and was more difficult to negotiate, a number of states accepting it only reluctantly because the role of the Council seemed excessive to them compared to that granted by the conventions, either existing or under negotiation. Certain states that feared a directorate too marked by permanent members joined those that feared unilateral imposition of a non-proliferation of nuclear weapons norm that they would not otherwise accept at the conventional level. The application of Resolution 1373 is relatively easy to monitor, as it invokes essentially legal— thus public—measures; Resolution 1540, on the other hand, deals with material behaviour in an arena directly concerning state security, wherein secrecy is accepted and opacity the tradition. Moreover, the committee formed under Resolution 1540, even though conceived on the same model as that established by Resolution 1373, was only initially established for two years and has less authority than that under Resolution 1373. This relative step backwards may be explained in several ways. First, the circumstances of its drafting: in 2004, the effects of the September 11 attacks had to some degree dissipated, and the sense of urgency that surrounded Resolution 1373 no longer existed; furthermore, apart from isolated cases at the intrastate level, the use of prohibited material by prohibited networks was not taking place. At the institutional level, the controversy surrounding the role of the Council had heated up. Its reform, specifically regarding its expansion, was being debated at the time, and certain states did not want the Council to adopt measures that were too intrusive, especially when the legitimacy of its composition was being questioned. At the legal level, some claimed that these measures should be the responsibility of the Conference on Disarmament, which was headquartered in Geneva. They maintained that the Council is not a decisionmaking court in disarmament matters24 because Article 26 of the Charter, which incidentally is not invoked by Resolution 1540, grants the Council only the ability to recommend measures.25 24 This argument was supported in particular by Pakistan but also garnered sympathy among other non-permanent members of the Security Council. 25 Art 26, largely ignored by practice, grants the Council this mission ‘with the assistance of the Military Staff Committee, plans to be submitted to the Members of the United Nations for the establishment of a system for the regulation of armaments’. The General Assembly may consider and recommend on ‘the principles governing disarmament and the regulation of armaments’ (Art 1, paragraph 1). It was on this basis that the Conference on Disarmament was instituted in Geneva.

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However, examination at the political level provides the crux of the matter. In this regard the ambiguities of Resolution 1540 are numerous—and without stretching too much, it can reasonably be asked if terrorism had become a front to conceal other objectives. The United States pushed for this Resolution with several categories of motives. One was to show that, after bypassing the Council during the Iraqi affair, they still attached a degree of importance to it within their instrumental framework or tool box. More specifically, they wished to generalise the singular problem in condemning the A Q Khan network (named after the Pakistani atomic scientist who had organised the diffusion of sensitive information to countries seeking a nuclear capacity) and thereby avoid singling out the Pakistani case (a US ally). Beyond terrorism, they sought to identify and then stigmatise states seeking nuclear weapons capacity—in other words, to reinforce or even replace the Nuclear Non-Proliferation Treaty (NPT), which to them seems to be of a questionable effectiveness, particularly in the face of North Korea and Iran. As for the other permanent members, Russia desired a fresh condemnation of terrorism in order to justify its latest action in Chechnya,26 while others were not dissatisfied with the reaffirmation of the existence of a political hierarchy in international order.

26 Russia was particularly attached to the formula that figured prominently in Resolution 1540, the reaffirmation of ‘the need to combat by all means, in accordance with the Charter of the United Nations, threats to international peace and security caused by terrorist acts’.

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22 Disarmament and International Law*

A

LTHOUGH DISARMAMENT EFFORTS are broadly legal in nature and based on particular on treaties, international law still has to establish the utility and originality of its contributions in this regard. Despite the numerous and diverse critics focusing on such issues, there are very few jurists among their ranks. Naturally, there are diplomats and military staff among the negotiators, but their concerns are above all political, strategic and even administrative, to the extent that a disarmament bureaucracy now seems to be on the way to being established. It is striking, for example, to note that the Geneva Disarmament Conference, a forum for multilateral negotiations, has no legal advisor of its own. Furthermore, around this functional nucleus can also be found a more immediately active though broader and more diffuse circle of scholars, experts and even activists emanating from different specialities, among them political and strategic analysts as well as scientists from a range of disciplines. This amorphous grouping carries a peripatetic problem with it from city to city, through various seminars, conferences and other meetings and gatherings that are held throughout the year, across the world, under different banners. Even among these, there are very few jurists to be found. It is true that specialists do not seem to ask for much legal counsel or advice, apart from the everyday support from the legal departments of national administrations. Why has this come to pass? Undoubtedly, the phenomenon is not unique to the disarmament enterprise. Any explanation could be expanded to the realm of international relations as a whole. For instance, we know that jurists and legal concerns as such played a very limited role in the drafting of the United Nations Charter, despite the fact that it is a cardinal text for international society. We also know that the settlement of disputes—and particularly the International Court of Justice—plays a modest role at best in international society and, consequently, in the field of agreements related to disarmament. However, there is a rather widespread though incorrect trend in such disputes to include legal considerations and the intervention of a judge. Hence, the importance of law in the construction of the European Community can be discovered on the basis of the jurisprudence of the * Previously published as ‘Désarmement et droit international’ (1990) Stratégique 97–117.

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Court of Justice of the European Communities, as the development of constitutional law can be discovered on the basis of the Constitutional Council’s jurisprudence. All this means that the legal approach to disarmament has to set itself radically apart from a jurisprudential approach. But for all that, the disarmament enterprise is largely a legal enterprise. It is based on treaties, agreements and undertakings that draw their authority from international law, and their value and durability are linked to the acceptance by states of a set of common legal rules and principles governing their activities. Today, everyone bears in mind a set of instruments that embody the enterprise and make it efficient. What, then, is the use of international law? The answer is related to the general functions fulfilled by international legal regulations, which we can attempt to analyse here in four directions: the orientation of state behaviours, their predictability, their assessment and the regulation of reactions resulting from the violation of agreed undertakings. The orientation lies in the normative nature of the instruments and the prescriptions they contain, which can be deployed at different levels: primary obligations are the very substance of the undertakings; secondary obligations relate, for instance, to the verification of the former; and there are specific conditions of application in the various parties’ domestic law, etc. Predictability stems from the postulate that the states concerned apply and will abide by their undertakings, and their future behaviour can therefore be reasonably anticipated, which increases their partners’ security. Furthermore, by building on future behaviour, it becomes possible to envisage the development of instruments and gradually develop a dynamic system. Hence, in the case of space law or all the Antarctic arrangements, conventions regarding the principles of engagement in such arenas represent a matrix in this regard, leading to the drafting of new rules. Assessment considers accepted standards as measuring devices against which practical behaviour can be compared in order to determine whether or not the said behaviour is compatible with the contracted undertakings. In this regard, legal standards are standards for judgement. They always include some degree of flexibility, so that they are further enriched by practices, and practices themselves make it possible to assess them. Hence, assessment works both ways, and treaties are not shelters encouraging stasis. As for reactions called upon by the violation of commitments, they raise particularly difficult questions in international law, which are at the same time particularly important within the field of security and disarmament. What can be described as a violation? Who can observe and declare it as such? What kind of reaction can be expected? A return to full respect of the standard norm or the protection of one’s own interests? Would this be based on individual or collective measures? Is the aim to provide compensation to the victims or to sanction the breach of the rule? Law has a number of

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answers to offer and also much more imagination to use, given the distinctive structure of international society, which allows very little development of institutional, collective and organised sanctions. The advantages of these general functions are being gauged for the success of the disarmament enterprise. They can be analysed more accurately by looking at them at two different levels. First, adopting a pragmatic approach, we shall examine the concrete role that the legal concerns of jurists can play in the life of international commitments related to disarmament—in their formulation, their application and in order to ensure compliance. Then, adopting a more theoretical and doctrinal approach, we shall question the existence of an international disarmament law that is governed by its own principles, based on special legal techniques and developing its own problems. The answer is not necessarily positive at this moment, but this issue has to do with the general idea behind disarmament—an examination of its foundations and purposes. To the extent that the enterprise is a proactive one, it would be good to know what framework it fits into, what has been done so far and what future trends may look like.

I. A Pragmatic Approach The reasoning here will be within the framework of treaties, which are an important though not exclusive part of the disarmament enterprise and stem from negotiation, including the drafting of international instruments. On the one hand, the latter form an organised whole that speak for themselves, but on the other, they also have to be included within the overall framework of international law and even within the various parties’ domestic law. The assistance of jurists in developing instruments as well as in their application is not limited—and should not be limited—to a subordinate exercise of giving shape to the substance of agreements that have been established elsewhere politically. Legal concerns are closely linked to the entire lifecycle of treaties, during both their formulation and their practice. These concerns are related to the rigour of the terms and concepts used— their precision. They also have to include some imagination—a property that is often considered foreign to lawyers—when the aim is to build mechanisms that make it possible to facilitate the application of treaties or to define the means of reacting to their violation. An attempt can be made here to distinguish between three stages or three types of problems that call for a legal approach—one that certainly should not be exclusive but is important: for the formulation of instruments; for their application; and finally, the various problems associated with compliance—or more precisely, noncompliance.

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A. The Formulation of Instruments i. Definitions Two aspects can be brought to light in this respect. First, the problem of the definition of the stated terms, which has to be at the same time sufficiently accurate as well as general to be able to cover the activities or material that need to be regulated. In this regard, a few examples of lacunae or difficulties due to the insufficiently precise use of terms can be given. For instance, in the Outer Space Treaty, the notion of the peaceful use of space has become a truism for commentators. Some view it as the complete exclusion of all military use (which is, by the way, considerably contrary to practice), while others view it as a prohibition of its use for aggressive purposes (which would add nothing to general international law, in particular to the UN Charter, within whose framework the treaty has been expressly placed). The distinction between civil and military activities is also very difficult to respect in practice, for a given activity can have a dual purpose—or at least have the capacity to be so. The problem gets even more complicated when you observe that within the same Treaty, the moon and other celestial bodies are devoted to exclusively peaceful uses. The difference between peaceful uses and exclusively peaceful uses is not very clear either. Is the aim here to obviate legitimate defence, for instance? Certainly not, as legitimate defence has been established in the UN Charter, the superiority of which the Treaty is required to recognise by virtue of its own provisions (Article 103). Another example of an incomplete or problematic definition has to do with the category of weapons of mass destruction (WMD) that is widely used by the relevant treaties. It is generally agreed that this category includes ABC weapons—atomic, biological (bacteriological) and chemical weapons. In this regard, it must first be noted that this is more a distinction than a definition, since the category is based on the differentiation between WMD and other weapons, which are traditionally designated as classical or conventional weapons. However, the distinction is not sufficient in itself—at least, it does not cover all the possible hypotheses of prohibited weapons; thus, missiles or delivery systems, which are still classified according to their range, clearly do not fit into any of these categories. Some are subject to specific prohibitions (eg, intermediate range missiles under the 1987 Intermediate-Range Nuclear Forces (INF) Treaty), while some weapons are deemed to be excessively injurious (the 1981 Convention), not to speak of the definition-related problems within the framework of the Treaty on Conventional Armed Forces in Europe (CFE). In addition, if the category of WMD itself is examined more closely, its homogeneity can be called into question: putting atomic weapons and chemical weapons in the same basket reinforces the ‘chemical weapon/

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nuclear weapon of the poor’ argument, the inaccuracy and even danger of which is increasingly condemned by experts. In fact, it may be estimated that chemical weapons are in no way inane weapons of mass destruction but rather weapons of terror, incorporated in battle corps and called upon to be deployed as a supplement to classical strategies. A more in-depth legal reflection on the definition and classification of weapons and their delivery systems would therefore be very useful. Admittedly, it would be futile to try and encapsulate today’s increasingly fast technological developments within categories that are too rigid. Moreover, these categories are undoubtedly likely to change with further developments in weaponry. But the preparation of agreed-upon lists and definitions could serve as a basis for negotiations. In this respect, the problems of definition are not all of the same nature. Some problems stem from a deliberate decision to maintain the ambiguity of a definition as a formula of open compromise; hence, these problems cannot be surmounted—at least, not during the drafting of a treaty. On the other hand, others are purely technical, due to the variety of official languages used and difficulty in rendering exactly the same notions in different linguistic systems. These problems can be more easily eliminated. Between the two can be found some opportunistic lacunae stemming from the lack of any desire to solve problems that did not exist during the negotiation phase, although those involved were aware that they would arise one day. One such problem is the demarcation between the atmosphere and extra-atmospheric space. Furthermore, methodological lacunae also exist, due to the fact that certain developments were not foreseen, and the prohibitions established are too limited, enabling parties subsequently to bypass them—the Anti-Ballistic Missile (ABM) Treaty provides several different examples of this kind. It is clear that these different difficulties do not call for the same type of treatment but are reinforced by the insufficient attention paid to the strictly legal problems of the formulation of treaties. ii. Links between the Various Treaties The links between the various treaties also gives rise to specific problems, of which some examples will be examined here. First, each treaty or instrument has in principle its own legal system, and the terms it uses must be considered as being specific to it, especially if it contains its own definition. But the treaty’s interpretation takes place according to the natural and ordinary meaning of words, within the context of the treaty and of international law (the 1969 Vienna Convention on the Law of Treaties, Article 31). Hence, is there a common vocabulary that can be used from one treaty to another? Furthermore, the question of whether or not a term is employed within its general meaning or with a special meaning that is specific to the treaty concerned must always be raised.

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Second, successive treaties may at least partially have the same purpose. One should find out how their application can be harmonised within the framework of relations between states that are parties to both treaties. General international law admittedly contains a solution in principle, favouring the prevalence of the later treaty in case of dispute (Article 30 of the Vienna Convention). But the UN Charter, for its part, prevails over any other instrument, whether previous or subsequent (Article 103). The relations between treaties can also be harmonised with the help of special provisions, and their authors should carefully ensure that this is done. In this regard, we can refer to the example of the Convention on the Prohibition and Elimination of Chemical Weapons, which is under negotiation, in particular its relations with the 1925 Geneva Protocol. In appearance, the future Convention should overlap with the Protocol and therefore make it ineffectual or invalid. But it has not been established that exactly the same parties will be signatories of both, which therefore means that the Protocol will have to be maintained. Furthermore, the Chemical Weapons Convention could well be done away with subsequently, and it must be ensured that its possible disappearance does not lead to the recurrent disappearance of the Protocol, which should on the contrary cover the Convention’s entire scope if such an eventuality does occur. Finally, certain parties have expressed some reservations concerning the Geneva Protocol, especially the limitation of the prohibition of the ‘first use’ clause, thereby expressly retaining the capacity to retaliate by using the same means. These states refuse to allow the new Convention, which contains far broader prohibitions, to call their reservations into question. There is no doubt that there are political problems involved, since other states do not realise or do not wish to understand the meaning of a reservation that would become purely virtual as soon as chemical weapons are totally eliminated. But it is clear that the problem of the Convention’s formulation, which inevitably involves a reslationship withto the Protocol, calls for a legal solution that will satisfy all the parties and tests lawyers’ imagination.

B. The Application of Instruments Some examples of problems that call for reflection and for legal solutions that are not due merely to the wording of texts can also be mentioned. First, there is the central issue of verification; second, there is the problem of the settlement of disputes related to the signed commitments; and, finally, there is the problem of mechanisms for the adaptation and evolution of treaties. i. Verification One of the most striking originalities of international disarmament law—to which we will return later—lies in the problems raised by the verification of

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treaties. In fact, their verification itself calls the law into question in two ways. On the one hand, it involves the legal appraisal of the parties’ behaviour and not merely the latter’s physical monitoring. In other words, surveillance should not be taken to mean verification. Surveillance means the collection and analysis of series of data on the behaviour of states. Verification means assessing the extent to which the concerned behaviour complies with a treaty, or at least the extent to which it is compatible with the said treaty. It is therefore essentially a legal activity, one that is the privilege of the parties involved. Third parties do not in principle have the power to intervene, at least not without the concerned parties’ consent. But this inevitably raises several questions, especially with regard to the role international organisations can play in the matter. Legal research would prove extremely useful in this regard. However, the legal dimension is too often neglected or goes unnoticed, especially in Anglo–American literature. When it is sometimes taken into consideration, especially in Soviet literature, it is mistaken for a guarantee mechanism, which is very different in nature. In fact, guarantees tend to ensure a treaty’s respect and therefore positively demonstrate that it is being implemented properly—such as the International Atomic Energy Agency (IAEA) guarantees within the Nuclear Non-Proliferation Treaty (NPT) framework. On the other hand, verification cannot demonstrate that a treaty is being respected but only that its violation cannot be established—which is an altogether different thing. So the police cannot guarantee the respect of the Penal Code but merely establish that it has not been violated (or, on the contrary, that it has). To put it more simply, a guarantee tends towards a positive demonstration, whereas as a general rule, verification can only lead to a negative demonstration. On the other hand, verification tends to rely increasingly on organised legal means—organised by the treaties themselves. In this work, we do not aim to give an account of the in-depth changes verification is currently going through, which some would like to view as a real revolution. Let us simply remark that it implements cooperative international procedures, in particular investigation mechanisms, which have to be meticulously organised and regulated, all the more so as they entail intrusions into the territory of parties. Hence, it is striking to note the rapid growth of instruments that are especially devoted to verification and its procedures in recent treaties and negotiations—the INF Treaty, the Strategic Arms Reduction Talks (START) or CFE negotiations and those related to chemical weapons. Two new types of legal problems emerge. On the one hand, there is the role of specially mandated international organisations, created by treaties and involving the development of institutional verification law—the status of inspectors, the international origin of the regulations they apply, etc. On the other is the relationship between these new obligations and domestic law, which should not hinder them. Within the framework of the chemical

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weapons convention that is currently being negotiated, the problem of US domestic law comes up, as the country’s Constitution is opposed to forms of verification it considers too intrusive vis-à-vis private activities. More generally, the issue of the protection of industrial secrets also needs to be settled. All these fields largely remain to be explored and should be developed as and when the disarmament enterprise affects civil activities, such as the chemical industry. ii. The Settlement of Disputes The settlement of disputes is barely or badly addressed on the whole in the international conventions currently in force. International jurisdictional settlement of disputes is rarely provided for and is in any case inadequate. It is too long in practice and not well adapted to the mix of legal, strategic and political considerations that are inseparable in any attempt to handle such issues. A legal element clearly exists, but it is difficult to isolate—at least, in any way useful for reaching a concrete settlement. The formula that can be found in many treaties, especially bilateral US–Soviet treaties, involves consultative, bipartite and joint consultative committees. It is difficult to reach any judgement in their respect, in the sense that they remain largely confidential in practice. However, while the committee set up by the INF Treaty currently seems to be working fairly harmoniously, the one envisaged by the ABM Treaty has not been able to settle the extreme differences in the Treaty’s interpretation, especially those related to the Strategic Defence Initiative (SDI). There are other more integrated formulae, especially in the case of the Treaty of Tlatelolco or within the framework of the IAEA guarantees, or else in the case of the Draft Convention on the Elimination of Chemical Weapons and the CFE negotiations. In this regard, the enterprise seems to be a project that is as yet under construction; legal imagination needs to unfurl its wings, and research has a useful role to play. It is clear that political and strategic problems predominate, but the legal perspective is indispensable for developing instruments that truly promote harmony or at least provide effective channels of communication. The settlement of disputes is a normal extension of verification, allowing in particular the elimination of dubious cases, the separation of important issues from simple misunderstandings and the clarification of specific positions in case of more serious differences. iii. Mechanisms for Adapting and Modifying Treaties These can prove necessary when treaties refer to changing techniques or even when they call for improvements in their provisions. However, it is very difficult to revise treaties—even imperfect ones—in practice. They are based on fine balances that could be destroyed if they are called into question. One

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option in this regard consists of the addition of protocols, adventitious instruments that make it possible to complete already negotiated treaties without challenging their foundations. Such protocols can be contemporary to a treaty but can be modified more quickly and simply than the treaty itself (the INF Treaty, for instance). They can also be added subsequently. A recent example can be seen in the 1990 Protocols related to the 1974 and 1976 American–Soviet treaties on the partial prohibition of underground nuclear tests. There may also be independent documents—as in the case of the IAEA guarantee system— which offer much more flexibility to commitments stemming from a single treaty. A system of conventions may therefore have a series of different instruments, and the various provisions have to be distributed among them in the light of their importance and technical nature. A more negative but often inevitable option is that of reservations—a technique used to individualise commitments. Reservations can be expressed only at the time a state grants its consent; they tend to limit the scope of the state’s commitment. A treaty may also prohibit them, and in this regard, it becomes necessary to handle the text carefully in order to safeguard the principles fundamental to the treaty’s functioning and offer a certain flexibility to take specific situations into account. The technique of periodic conferences to study a multilateral treaty is sometimes used. Such conferences do not lead to a renegotiation of the treaty but to assessments of its results, its advantages and disadvantages, and they are always occasions for questioning its worth—a moment of truth, if you will. But it is important to stress that despite the frustrations that may be expressed within their framework, to date, no withdrawal has been announced and no treaty has been terminated at any such conference. Dissatisfactory treaties have simply not entered into force—eg, SALT II (1979) and the partial nuclear test ban treaties (1974 and 1976). This demonstrates the advantages of international law, like the fact that the parties concerned take their commitments seriously and do not intend to challenge them lightly. The issue of their respect and of the reactions instigated by their violation remains just as valid.

C. Violations of Commitments Respect for a treaty commitment is always presumed, but two major issues surround the concept of a violation: the determination of a violation of a commitment and the reactions authorised by law in the face of such a violation. From a legal point of view, these issues remain largely unexplored within the context of disarmament and weapons limitations. It is true that general international law is applicable, particularly as it is codified in the Vienna Convention and dominates the entire system that is in force. It is also true that specific treaties can always include more precise provisions,

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channelling the mechanisms in question and tending to strengthen effectiveness. But it must be observed that they are generally silent on the issue or make only brief references to it. Hence, this is a field that is open to research, although the draft chemical weapons convention for its part contains far more developed indications. This glaring deficiency is due to the fact that parties generally refuse a priori to envisage a violation as a practicable hypothesis—a by-product of the old Soviet reasoning according to which organised verification was of no use since there was no way that any militarily significant violation could avoid being noted, which was a deterrence in itself. It could also be due to the fact that in this regard, the parties intend to preserve all their freedom of appreciation and action and therefore do not wish to be confined within any predetermined framework. It can also stem from the consideration that any mechanisms should be cooperative—even collective, binding and heavy and thereby impossible to implement or even ineffective. The aim here is not to attempt to dream up such mechanisms but to indicate the main issues that should be broached within the framework of a legal regulation on the establishment of violations and the responses they call for. i. Violations One first question is related to the determination of a violation. Who is authorised to establish it? By virtue of general international law, only the parties concerned have the power to do so, and they can do so only by mutual agreement, if such investigation is to be imposed on all. They can certainly decide to place the matter before another body, for instance a jurisdiction that would decide with the power of legal truth. But such a situation is unlikely. The Treaty of Tlatelolco and the Antarctic Treaty are isolated examples. Furthermore, the competence of the International Court of Justice, including arbitration and other judicial settlements, is only optional. Otherwise, only consultation procedures are generally provided for, falling within the general dispute settlement framework, but no obligatory solution. The intervention of other bodies cannot be binding on the parties without the latter’s prior consent. Hence neither the UN General Assembly nor the Security Council can legally declare the violation of a treaty concluded between specific states. It is true that the Security Council can declare that a given behaviour constitutes a threat to peace or even breaks the peace and consequently take action on the basis of Chapter VII. But the sole basis for any action it takes can only be the Charter. It would therefore have to rely on a legal basis other than the treaty that may have been violated. As for parties acting individually, they can express their views of the behaviour of other parties and maintain that it constitutes a violation of their commitments. But such a claim is obviously binding only on the state making it. It can only hope to convince the other party or other parties about

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the legitimacy of its claim—as was the case within the framework of the ABM Treaty and the American stand vis-à-vis the Krasnoyarsk radar, as the Soviets finally acknowledged that its existence was contrary to their treaty commitments. Imagination and legal research should focus on developing methods that would make it possible to avoid the impasse of opposing legal claims or else to facilitate the settlement of the dispute concerned. One possibility is, for instance, to develop cooperative methods, formalise discussions, make it mandatory to provide the motivation behind the behaviour concerned and to organise debates between the concerned parties—in fact, to enable an organised face-off between the different arguments. These methods would naturally be more complex within a multilateral framework as compared to a bilateral framework. A second question is the classification of violations. They cannot all be placed at the same level. An a priori distinction could be made on the basis of their purpose, origin, substance and intensity. Depending on their purpose, violations of the substance of a convention or treaty’s commitments can, for instance, be distinguished, as can those related to other obligations, such as verification procedures, as such violations hinder their normal functioning. Other violations can implicate more secondary provisions, especially procedural ones. Depending on their origin, intentional violations must be distinguished from those that are accidental in nature or those stemming from administrative shortcomings rather than deliberate behaviour. A priori, the former should be considered more serious than the others. But if we reason in terms of security, a voluntary violation may well lead to minor consequences, whereas an accidental violation may well be fraught with risks. Depending on their consistency, active violations that presuppose deliberate behaviour can be contrasted with passive breaches, ie, inaction or delays in a treaty’s application. The criterion of intensity is the vital criterion and is superimposed on all the others far more than standing out from them. On this basis, and in the disarmament context, this criterion leads us to distinguish militarily significant violations that undermine the security of parties from others. It is difficult to confine such distinctions within a predetermined legal framework because the appreciation of its significant character depends on all the circumstances that were at the root of the breach as well as on the general state of relations among the parties. The verdict in this regard therefore remains fundamentally political and determines the choice of reactions deemed appropriate. ii. Reactions Broadly speaking, the various treaties in force generally contain just two types of reactions: withdrawal from the treaty or submission to the UN

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Security Council. No withdrawal from a treaty has ever occurred. Moreover, it would run the risk of leading to its destruction. That is a possibility that underlines the emphasis laid on the individual security of parties, as it is a protective measure that gives them full freedom of action, much to the detriment of the treaty itself. As for making a submission to the Security Council, it is actually just a cosmetic provision, as in any case it can be done on the basis of the Charter. On the basis of general international law, violations entail diverse possible consequences: to begin with, doubts about the international responsibility of the state that perpetrated the breach and the reparation of damages caused. It is a long, unpredictable process, insufficient by itself to deal with all the situations. The possibility of taking countermeasures subsequently makes it possible to fulfil several objectives: protection from the consequences of the violation, pressure on the state responsible in order to regularise its conduct and reprimands for its attitude. Hence, the United States officially referred to this possibility within the framework of the Krasnoyarsk radar controversy, with some success it seems. This option offers the advantage of not having to withdraw from the treaty framework and therefore keeping it in force, although it can be provisionally suspended (Article 60 of the Vienna Convention). As a quid pro quo, it has the disadvantage of being based on the individual interests of the parties implementing countermeasures rather than on safeguarding the treaty itself. From a more long-term perspective, two categories of reactions can thus be distinguished: those that tend to protect the individual security of parties, possibly even to the detriment of the treaty; and those that tend above all to restore respect for the commitments made and therefore strive to safeguard the systems set up by the treaty, upholding its collective goals. It may seem that the first type of reaction is more justified within the framework of bilateral treaties, while the latter is more called for in the case of multilateral treaties. In fact, the latter come with a collective regulatory dimension that goes beyond the sole individual interests of parties. This distinction largely depends on the individual or collective nature of reactions. In this case too, systematic legal research would prove very useful, identifying models of possible reactions in accordance with the gravity of breaches and the nature of interests prejudiced. The draft chemical weapons convention opens up interesting avenues in this connection.

II. A Doctrinal Approach It is tempting to look for conceptual unity in the disarmament enterprise, for it can be translated into legal terms by doctrinal systemisation, leading to a ‘disarmament law’ akin to an international economic law, a development law, a law of the seas, an environmental law, etc. But can we surrender to this delightful sin by jurists, which is at times justified purely by

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didactic requirements and at others better provided for by a real autonomy, based on common original elements, a body of interdependent rules, an identical problem, recourse to a set of specific techniques and so on? At this stage of disarmament’s development and even at the stage that can currently be envisaged, such a temptation would appear fallacious and such efforts artificial. The term ‘disarmament’ itself—which we have used for reasons of convenience—covers different notions and practices. While the disarmament enterprise itself appears indisputably unified, the unity does not lie as much in itself as it does in the relations the enterprise maintains with international security. It is in relation to international security that its meaning, its dynamics and its perspectives must be sought. Hence, ‘disarmament law’ appears to be a branch of international security law or a set of offshoots that are linked to differentiated international security approaches. From an even more comprehensive point of view, legal instruments related to disarmament can finally make a contribution to general international law.

A. The Heterogeneity of ‘Disarmament Law’ In fact, it is not possible to identify a homogenous corpus of legal instruments with regard to disarmament, as each preserves its individuality and is subject to its own system. Similarly, the formulation processes are diverse and remain independent. It is even difficult to find common principles for the entire set of instruments. i. A Diversified Corpus The fundamentals are covered by treaties, themselves highly varied, but other instruments—collective, non-contractual instruments, unilateral state actions or even resolutions by international organisations—should not be neglected. On the other hand, notwithstanding international law, the role of international customary law remains limited. As for treaties, it is clear that most major post-war political treaties and even some peace treaties are linked to disarmament: the 1947 Peace Treaties with the Axis allies, the Antarctic Treaty (1959), the Outer Space Treaty (1967) and, more directly, treaties pertaining to nuclear arms and other WMD such as the Partial Test Ban Treaty (1963), the NPT (1968), the Seabed Treaty (1971), the Biological Weapons Convention (1972), etc. But older treaties like the Geneva Protocol (1925) must also be taken into consideration. All the same, the latter, like the more recent Convention on Weapons which may be deemed to be Excessively Injurious (1981), falls as much under humanitarian law or armed conflict law as it does within the disarmament enterprise. These instruments limit the use of some weapons out of a concern for protecting virtual targets but do not have the effect of banning or limiting the weapons themselves. Furthermore, some treaties

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pertain exclusively to disarmament while others deal with it only partially, such as the Antarctic Treaty and the Outer Space Treaty. Along with these major multilateral agreements there are also bilateral or US–Soviet agreements—from the 1972 SALT I Agreements to the 1987 INF Treaty—that remain totally independent and fall under another disarmament approach. Admittedly, the treaties at issue may at times overlap or supplement each other. They can cut across each other because partially identical obligations can be found in different treaties in relation to the same parties—as is the case with the nuclear test ban in the Antarctic or in outer space, and with the more general ban formulated by the 1963 Treaty. They can supplement each other because a subsequent treaty emerges as a logical development of a previous one—as is the case with the 1972 Biological Weapons Convention and the draft convention on the elimination of chemical weapons with regard to the 1925 Geneva Protocol. But the principle that each treaty establishes an autonomous legal system and does not dissolve into a common legal ensemble remains. A few collective instruments the legal nature of which is problematic must also be mentioned—such as the final Act of the 1975 Helsinki Conference and the Final Document of the 1986 Stockholm Conference. These do not emerge as treaties but rather as collective unilateral action that can be attributed to a group of participants at a conference, or even as a cluster of convergent unilateral actions that can be attributed individually to each of the participants. For all that, we might wonder about this description and ask whether these are not really treaties—at least from the international law perspective. They can be refused the status of a treaty only in the eyes of the parties’ domestic law, which would exclude the usual procedures required for the contractual commitments of the states involved, particularly their ratification. In that case, these would constitute a new category of agreements in a simplified form, but in the eyes of international law they cannot be considered any less than treaties. Nonetheless, these instruments do retain their originality as far as their contents are concerned. They contain confidence-building and security measures—a concept that enriches the disarmament enterprise’s range of techniques, whereby they deserve to be placed in a special category. Significant unilateral state actions would call for more in-depth research, especially from the perspective of their legal effects. These include the renunciation of the first use of nuclear weapons, spontaneous arms reduction, reduction in military expenses, withdrawal of troops from the territories of foreign states, and so on. It would also be interesting to analyse their ties to treaties. They can intervene within the framework of negotiations, be a sort of anticipated application of a forthcoming agreement or even intervene in parallel to a treaty, without their authors intending to make them part of a treaty. That was the

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case with the renunciation of atmospheric nuclear tests. Such unilateral state actions can even replace a convention that has not entered into force. The application of the 1979 SALT II Treaty for almost a dozen years by the United States and the USSR even though it was never ratified by the former is one such example. At a different level, the acts adopted by international organisations, particularly the General Assembly’s resolutions, also enrich this corpus, although on a non-obligatory basis. The Security Council also enjoys specific powers on the basis of Article 26, which authorises it to draft ‘plans . . . for the establishment of an arms control system’. Thus far, these powers have not been used, but they are not necessarily dead letters, especially given reforms to the Security Council. As for the General Assembly, it is traditionally associated with ‘general and complete disarmament under effective international controls’, according to the leitmotiv of the Final Document of the first extraordinary session devoted to disarmament in 1978. It adopts an impressive number of resolutions every year within the framework of its first commission. Most are merely declaratory in nature. Only a few are operational, especially with regard to the mandate granted to the Secretary-General to proceed with factual investigations in case of any alleged use of chemical or biological weapons. It is in the 1978 Document—formally a Resolution adapted by consensus—that the most appreciable efforts for the unification of the disarmament enterprise can be found. These are marked by a desire for ecumenism, retaining disarmament’s global approach and seeking to include all the techniques as well as all the principles. In this regard, this highly elaborate and yet formless text follows the fishnet logic, gathering all the proposals and all the activities and knowledge acquired so far, rather than being a mere fully organised discourse. In any case, it is more a discourse, though without any constraining legal authority. In addition, its most memorable characteristic is that it condemns nuclear deterrence in the name of collective security and therefore acknowledges the priority of nuclear disarmament. However, practice has shown that most of the agreements concluded have, on the contrary, followed the logic of nuclear deterrence or instead focused on conventional disarmament as a priority, especially within the European framework. International customary law—precisely because of the individualisation of treaties and their diversity—plays only a very limited unifying role. And yet it is not totally absent from the disarmament enterprise. Therefore, it may be considered that the ban on the first use of chemical and biological weapons or even the ban on placing WMD in orbit, as well as the demilitarisation of the Moon or of the Antarctic, which was established through a convention, have assumed a customary character. But this kind of extension of conventions is exceptional. In particular, any pretence at a customary ban on the use of nuclear weapons and even on the first use of such weapons can seriously be called into question.

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ii. Independent Formulation Processes Independence stems from what has been evoked earlier. The main negotiating forums have no legal ties among them, although their political synergy is undeniable. Thus, the US–Soviet bilateral negotiations that have always acted as catalysts are independent of any intervention or right to inspection by third parties, and their results may be communicated to other states on a purely voluntary basis, at times within the framework of the Disarmament Conference. The same is the case with regional negotiations—currently essentially European—that take place within autonomous frameworks. The Disarmament Conference, whose current mechanisms stem from the reorganisation carried out on the basis of the 1978 Final Document, is in theory independent of the United Nations. While it is presented as the only multilateral negotiation forum, it is not universal in nature for all that, as it remains limited to forty participants. They have the responsibility of formulating draft conventions that are universal in nature. iii. An Absence of Common Principles An attempt could be made to identify common principles in two ways: first, by addressing the issue of general requirements for the verification of instruments, which could constitute a common characteristic; and second, by calling into question the notion of ‘disarmament’ itself, which could be a unique matrix for otherwise diversified instruments. However, this two-fold study leads only to uncertain results. With regard to verification, it seems clear that it is a common, key requirement for entering into any agreement today. However, verification primarily concerns only treaties or other collective acts. Secondly, its modalities are too diversified and specific to fall under a single legal framework. Some agreements—such as the Geneva Protocol, the 1963 Treaty on the partial nuclear tests ban and even the 1967 Outer Space Treaty—do not come with any specific provision in this regard. On the contrary, others— such as the 1987 INF Treaty, the draft convention on chemical weapons and the FCE draft—come with highly elaborate provisions. This corresponds to a dynamic that was enabled by the recent agreement concluded on the basis of the changed Soviet position with regard to intrusive verification measures. However, the principle of the specificity of verification remains predominant, and each treaty develops its own means and methods in accordance with its needs and modalities. At times, it may be limited to national technical means, at others, forms of cooperative verification limited to parties may be developed or a ban on international organisations may be provided. The latter would not be able to play a truly coordinating or unifying role in any case, as they lack general powers in this regard. Hence, verification remains the prerogative of the parties concerned.

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It is true that the General Assembly can perform a regulatory function. That was the case with the adoption in 1988 of 16 principles pertaining to verification by the Disarmament Commission. It can also play an operational role, for example in the form of investigations by the SecretaryGeneral in case of the alleged use of chemical or biological weapons. But any such intervention remains dominated by two principles: the principle of subsidiarity—the General Assembly does only what the Member States cannot or do not want to do; and the principle of assistance—its intervention depends on collaboration by the Member States and tends to facilitate the performance of their own duties. Finally, verification, which has witnessed a spectacular growth in the disarmament sector, is probably likely to be extended to other fields of endeavour. On the one hand, it can be extended to other aspects of international security, especially the field of crisis management and resolution; and on the other, it can spill over into other issues, particularly with regard to human rights and humanitarian law or even the field of environmental law. Concerning the disarmament concept itself, it is really more diverse or even more contradictory than the simple images it evokes may indicate. We shall not stress this issue, because the fundamental difference between disarmament and arms control is well known at the theoretical level: disarmament refers to the organised reduction of weapons, leading to their progressive and total or at least asymptotic elimination; arms control is a way to stabilise nuclear deterrence by limiting the WMD race, a strategy that ultimately legitimises nuclear weapons. This distinction—and even this opposition—indicates the absence of homogeneity and the deep ambiguity at the heart of the disarmament enterprise itself. It also shows that disarmament’s raison d’être lies not within itself but with reference to given conceptions that are external to security. It is in these conceptions—with their contradictions and their eventual convergences—that the real issue of disarmament and its dynamic lies.

B. The Incorporation of ‘Disarmament Law’ within International Security Law It is well known that notions of security are quite varied. They are at least as numerous as the number of states. Each state—enjoying the right to security and the right to ensure it by its own means in compliance with its international obligations—tends to build its notion of security on the basis of its own interests. But notions of international security—presupposing a much broader and ultimately universal approach—are more restrained. i. Different Notions of International Security The intention here is not to review all these notions. In practice, three seem to predominate. First is the old theory of the international balance of power, which is both the zero-point of a system, as it corresponds to a highly

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empirical practice, and the common basis of all systems. It is well known that the balance of power is a highly complex notion, by nature unstable and particularly difficult to manage. More recent notions, which emerged in the twentieth century, include collective security and nuclear deterrence. The first—voluntarily organised and institutionalised by the UN Charter— is international society’s official reference system. The Final Document of the first Extraordinary Session on Disarmament in 1978 claims it abundantly and intends to reaffirm it. The second, nuclear deterrence, has been empirically developed on the basis of developments in nuclear weapons and their vehicles, closely following their rapid growth. Although they coexist, the two systems are radically opposed to each other. The first presupposes the comprehensive and collective management of international security, both subordinating individual security to that of all states and guaranteeing it. Security here bears a dimension of solidarity. It is based on a ban on the threat and use of force and on collective responses vis-à-vis aggressors. Nuclear deterrence, on the contrary, is based on the primacy of the individual security of states participating in the nuclear strategy, ready to defend their own and only their own security, using extreme means. The justification of this sacred egoism is the effectiveness of deterrence, which is based on the threat and not the use of weapons, which would mean not the application but the failure of the system. ii. Collective Security, Nuclear Deterrence, Inequality Among States and Disarmament No matter how opposed they are to each other, the two systems of collective security and nuclear deterrence do have some aspects in common. First and foremost, both systems are based on a very high level of inequality among states. As for collective security, it is a legally guaranteed privilege of the Security Council’s five permanent members, although there are corresponding responsibilities. As for deterrence, it is a de facto privilege that the possession of nuclear weapons constitutes, accompanied by legally organised attempts to freeze the nuclear status itself, which nuclear-weapons states wish to monopolise. The fact that the official nuclear-weapons states are in fact the Security Council’s own permanent members contributes a great deal to reinforcing this attitude. Furthermore, both collective security and nuclear deterrence presuppose some form of disarmament, and it is not surprising that the disarmament enterprise should coincide with the birth and implementation of these systems. In fact, as it is conceived and implemented by states, disarmament bears only a secondary ethical dimension. It is an instrument for their security, and therein can be found its basis and limitations. Hence, it is logical that the disarmament enterprise mostly reproduces the fundamental tenets of the security systems in force.

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Therein lies the explanation for the inequality that in fact often marks agreements on disarmament: de facto inequality, asymmetry of obligations, absence of reciprocity, but de jure equality. De jure equality is in fact ensured the moment states grant their sovereign agreement to the treaties at issue, because they find in them proportionately advantageous in the light of their needs. The highly complex controversies about the discriminatory nature of some treaties (eg, the privilege of US–Soviet bilateralism) actually elude the law and play out in the political field. Equal rights to security can take the form of highly differentiated obligations. Furthermore, balance too has never been confused with equality. iii. Differences in Security Systems and Differences in Types of Disarmament On the other hand, the types of disarmament called for bythe two systems of nuclear deterrence and collective security are very different. Collective security calls for general multilateral treaties, and without achieving general and total disarmament, it presupposes arms regulation. In fact, states preserve the right to guarantee their own security and must be able to lend support to the Security Council if needed. But it is clear that an arms race or generalised and unchecked arms policies are a threat to the system as a whole. Furthermore, we have seen that the spirit of the Charter is exactly that, as it entrusted the power of arms regulation itself to the Security Council (Article 26). At another level, it may be observed that the arms reduction enterprise in Europe has been accompanied by efforts to redefine a security framework that was also supposed to include a collective, panEuropean security dimension. As for nuclear deterrence, it is based on the existence of nuclear weapons by its very definition. But the technological dynamic of these arms is such that they run a strong risk of leading to the self-destruction of deterrence, as they are incapable of determining their arms use doctrines and because of their spread, which makes their use on a battle field increasingly probable. Hence it is not just as a corrective measure but as a condition of survival that nuclear deterrence calls for arms control, which does not presume their disappearance but merely their limitation or reduction. The emphasis therefore is on nuclear weapons—but more on safeguarding them as deterrent weapons rather than on eliminating them. Consequently, the main agreements concluded—either multilateral or naturally bilateral—come within the framework of arms control and not disarmament. What about the general and total disarmament to which the General Assembly and a number of nonaligned countries refer? Apart from its rhetorical nature, total disarmament probably suffers from not being tied to any clearly defined security system the implementation of which could ensure and confer political benefits. The system could scarcely be anything

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other than a sort of world state, an effective monopoly on recourse to force for the benefit of international bodies enjoying their own individual means. However, as mentioned above, the 1978 Final Document refers to collective security, which does not imply general and total disarmament and ultimately even excludes it. The current status of the disarmament enterprise reflects these ambiguities and translates them in legal terms. It is partly based on arms control and nuclear deterrence, partly on arms reduction and collective security. Chemical disarmament is at the confluence of these two logics. It is based on the rejection of the widespread but inaccurate idea of chemical weapons being ‘the poor man’s nuclear weapons’ and excludes chemical weapons from the deterrence theory. It tends to preclude proliferation that could generate or worsen local conflicts, which could be a real challenge to collective security. iv. The Contribution of the Disarmament Enterprise to General International Law Two possible contributions to general international law have already been noted. The first involves the search for a classification of violations of international commitments and and account of the corresponding reactions they call for. It is true that such a classification cannot be transposed, as it stands to all international obligations or even all treaties. But it would teach useful lessons for the formulation of more comprehensive classifications. A second contribution involves verification principles. As mentioned above, verification can be extended to other types of agreements or commitments. On this issue, the methodological lead taken by disarmament-related agreements can be used to develop general rules—such as investigation procedure models, rules pertaining to the status of inspectors, modalities governing cooperation with international organisations and so on. Efforts to develop a classification of obligations can be added to this example. Those contained in the different agreements are sufficiently diversified to nourish and enrich conventional analyses—obligations to do, to destroy, to cooperate, to submit to some controlling authority or the other, etc; obligations not to do, not to manufacture, not to test, not to deploy, not to transfer, etc; primary obligations; and secondary obligations (verification).

III. Conclusion If we were to once again take up the four general functions of international law that were identified at the start of this essay—orientation, predictability, assessment and reactions in the event of violation—it appears that they are perfectly applicable to the field of disarmament, irrespective of the definition to which we subscribe. It also appears that the assessment of the instruments

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in force is rather satisfactory in this regard, because no state has withdrawn from them and because disarmament’s legal techniques have or are undergoing notable developments. Legal analysis has therefore made a multifaceted contribution to the disarmament enterprise. Both the various endeavours initiated by the negotiations and the general reflection subsequently called for by their assessment have proved that legal considerations have an eminent and, in all hypotheses, indispensable role to play.

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23 On the Comprehensive Nuclear-TestBan Treaty: The United States between Unilateralism and Multilateralism*

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HE UNITED STATES Senate’s rejection of the Comprehensive Nuclear-Test-Ban Treaty (CTBT) barely raised concern at the international level. Nor for that matter did it get much attention within the United States, except in specialised circles. The International Herald Tribune, usually an avid commentator on international relations, ever ready to open its op-ed columns to specialised debate and controversy, paid scant heed to the Senate rejection. It is true though that public opinion was focused at the time on far more dramatic and violent events. Yet in the period since the end of the East–West confrontation, the rejection may be considered an important watershed in international relations. It confirms in any case, along with other elements of a different nature, that we are moving out of a prolonged lull and entering into a phase in which international relations will be characterised by growing acrimony—in particular towards the United States, whose behaviour is being questioned at all levels, especially in the realms of economics and international security. Only a short while ago, no one doubted the fact that the contemporary era was characterised by American hegemony—a term that warrants analysis and clarification, as it means different things to different people. So as not to complicate things further, let us say that it has four characteristics: it is a form of indirect domination; it uses political, military and economic pressure without territorial conquest or occupation; it is accepted by those who are its object; and it is beneficial more for the country exerting such hegemony than those who have to suffer its consequences. It is not as if such hegemony has gone uncontested. By and large, however, it has been accepted as matter of fact, viewed as a threat for a limited number of states and a factor of stability for the majority of states. Many see American hegemony as the organising principle of international relations even though it * Previously published in (2000) 1 Annuaire français de relations internationales 747–57.

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may now seem justifiable to ask whether it is resistance to such hegemony that is becoming the organising principle, if indeed such a principle exists. In point of fact, it was the United States that sought the Comprehensive Nuclear-Test-Ban Treaty; the United States had worked hard to achieve it, and most observers believed it would be the main beneficiary. The United States has the option of carrying out test simulations in conditions qualitatively superior to those of any other nuclear state. Furthermore, the US renunciation of nuclear testing via the CTBT did not stop it from maintaining its technical capacity to resume testing at any point in time—a capacity that varies far more greatly for the other official nuclear weapon states. How then are we to understand and interpret such a rejection? Many explanations have been proffered; they are not necessarily exclusive and appear to correspond to essentially a tiered explanation as well as to the future options open to the United States. The first interpretation, the most benign, is that it is merely a minor setback: domestic quarrels regarding the Clinton administration were responsible for the mess that will settle over time. Other states must only maintain a business-as-usual attitude in the certainty that the United States will eventually rally round to the CTBT. A second, more malicious interpretation does not consider the rejection to be the victim of domestic political wrangling but rather sees it at best as a sort of national Freudian slip and at worse as a conscious decision. The rejection of the CTBT may then be interpreted as a complete reversal of the doctrine followed by the United States for over forty years—the abandonment of a policy of arms control, at least of nuclear arms control. A third and more benign interpretation would have it that the United States wants to maintain a savant’s ambiguity in order to keep its options open, detaching itself from the international rules and regulations that it tries to impose on others. The issue then is to what extent the rejection appears symbolic of a questioning of American hegemony, at least according to the perception of the majority of observers.

I. A Minor Setback According to the most benign analysis, which is most favourable with respect to the future of the CTBT and, by implication, to the entire arms control enterprise, the rejection should be viewed as a reflection of the outlook of the US Senate alone, not that of the administration that was caught unawares and hence, in spite of its good intentions, unable to go ahead with its stated goals. It may be argued that the Senators—a remarkable percentage of whom do not even hold passports, as much a sign of ignorance as disinterest—were ill-informed about foreign affairs and acted out of partisan antagonism, the origins of which have been set out in Tocqueville’s famous work on American Democracy. The Senate’s majority vote was at the same time a chauvinistic reflex compelling it to keep a narrow vision of

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American interests and the partisan desire to weaken Presidential authority, which it was unable to flatten with ‘Monicagate’. The significance of the vote is henceforth more domestic than international and more of an accident than thoughtful deliberation. Unlike in the case of the non-ratification of the Strategic Arms Limitation Talks (SALT) II Agreements in 1979, there is no designated external enemy, and it does not fall within a framework of heightened international conflict. To support this thesis, it may be said that there are other contextual considerations. First, there has been a relative decline in the strategic and political usefulness of nuclear weapons. They no longer occupy a central place in international security systems. Though not completely marginalised, their importance is certainly on the decline. No date or scenario has been fixed for a concerted effort to move away from nuclear weapons, something only the United States can initiate and organise. But the role of America in the arena of nuclear arms control has diminished. Thus the US Senate vote has not made the dramatic impact it would have ten years ago. It will not hamper the process initiated to scale down the role of nuclear technology, which may be pursued by taking other paths. Then the Treaty, even though not implemented, remains in force to a certain extent on the basis of common obligations imposed by international law on the United States as on the other signatories: they cannot act in a manner that would defeat the object and purpose of a treaty as long as they have not expressly stated their intention of no longer being a party to the said treaty (1969 Vienna Convention on the Laws of Treaties, Article 18). Now the United States, at least the Clinton administration, has clearly indicated that there was no question of going back on the Treaty, in spite of the Senate’s negative vote. As such, this could be the rationale behind the muted response and lack of real consequences of the rejection, which in any case most people hope is only provisional. At the domestic level in the United States, those hostile to the Treaty have not called for any alternative strategy to arms control. It was the weakness of the CTBT in achieving its aims that received the most protest, rather than the aims themselves. As Bernard Sitt has pointed out, ‘The debate is being pursued in apparently more measured terms.’1 Internationally, no state signatory to the treaty has stated its intention of withdrawing from the CTBT, with some even reaffirming their support of the aims and mechanisms of the Treaty. The preparatory process for it coming into force has not been interrupted. In any case, we know that the conditions related to its coming into force will not be fulfilled for some time to come, and this is independent of the current American rejection. So there

1 B Sitt, ‘Le rejet du TICE par le Sénat américain’ (2000) 1 Annuaire Français de Relations Internationales 741–46, 744.

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is no cause for undue concern or to behave as if the vote marked a radical departure in American foreign policy. Quite the contrary: adopting an understanding, measured attitude will facilitate the subsequent return of the United States to a conventional framework, one that it has played a large part in defining. But is this thesis convincing? It has the merit of not succumbing to momentary pressure, avoiding knee-jerk reactions and refusing to allow the CTBT to be taken hostage by the United States. It seems to justify a moderate response and also enables the other signatories not to question the relevance of their signing or ratification. However, it seems to be based on a dichotomy or a basic, even simplistic, opposition: the American Congress is traditionally isolationist, whereas the Presidential administration is more voluntarily international. When viewed in the classic internal dialectic specific to American institutions, the rejection of the CTBT is thus rendered devoid of its specific significance. At a first glance, it is possible to observe that even if it is accurate, such an analysis does not exclude the possibility of a rejection fraught with consequence—it was in this way that the rejection of the Treaty of Versailles by the United States marked a disastrous turning point in the international relations of the post-World War I era— all the more so as the accuracy of such an analysis is questionable. Bernard Sitt’s previously mentioned article clearly indicates that doubts about the Treaty are not limited just to Congressmen; they seem to correspond with reservations on the part of the Presidential administration, so much so that the present situation is, to use Sitt’s words, the result of ‘a heralding break’. But what exactly is being foretold?

II. A Revealing Slip The Senate rejection is a revealing slip because, as stated earlier, it does not seem to be part of any discernable logic, running counter to the official declarations of the American Administration. It is revealing because it may be seen as a subconscious indicator of a deep-seated trend in American politics with respect to nuclear strategy and, at a more general level, international security. Such as thesis would indicate that, contrary to the assumptions of the benign thesis, the international security context has changed. Just after the signing of the CTBT, India and Pakistan, two countries that had signed neither the CTBT nor the Nuclear Non-Proliferation Treaty (NPT), openly conducted nuclear tests—a fact that cannot be overlooked. The questioning on the part of the United States of the Anti-Ballistic Missile (ABM) Treaty as well as the country’s desire to develop a missile protection system cannot be overlooked either. Here we will only mention the nuclear issues specifically linked to the CTBT, keeping in mind the necessity of placing them in a larger framework, the Revolution in Military Affairs (RMA) for example. We will therefore look at the immediate consequences, then at possible

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or probable outcomes and finally speculate on the existence of doctrinal underpinnings that may shed light on such apparently erratic behaviour. The immediate consequences depend above all on the respective positions of the various nuclear powers, official or de facto. The United States maintains its option to officially abandon the CTBT and freely carry out tests, very much like the SALT II in its time. It is hard to imagine other nuclear weapon states doing likewise. France has not only ratified the CTBT but also destroyed all underground test sites in the Pacific. The possibility of resuming tests can only be envisioned on American sites, as in the case of the United Kingdom. Russia does not seem to be in a position to resume tests for a long time to come, for both political and technical reasons. Thus all the European nuclear powers have been deprived de jure and de facto of the opportunity to resume tests; and so for them the CTBT has to succeed. A major element of discrimination has therefore essentially been introduced among nuclear powers to the detriment of Europe. The situation is very different in Asia, because China, India and Pakistan do not seem to be subject to the same constraints. Moreover, as the continent is witnessing an intense ballistic weapons race, it would not be wrong to state that in contrast to the rampant denuclearisation in Europe, Asia, in the throes of numerous conflicts, has embarked on a path of rapid nuclearisation. The possible if not probable fall-out concerns the future of the ABM Treaty and, after that, of certain multilateral instruments of nonproliferation. As for the 1972 ABM Treaty, we know it was initially a bilateral treaty between the United States and the Soviet Union as the unchanging keystone of the nuclear strategy of mutually assured destruction, drastically limiting the deployment of missile protection systems. Even though it was bilateral, this treaty concerned all states, not just the nuclear powers, because it was a condition for the maintenance of international strategic stability. Today, the United States is becoming increasingly attached to the idea of deploying one or more limited defence systems to protect its national territory against missiles. Though they are directed officially at accidental launches or strikes from proliferating states, which have the potential to defend allies within a regional framework, such systems will probably raise doubts about the efficiency of the nuclear force of powers such as France, which would no longer be in a position to exercise its nuclear deterrence except with the implicit authorisation of the United States. Furthermore, such systems also have the potential to accelerate the arms race and are likely to spill over, especially in Asia. All these prospects may finally weaken the NPT, and the next review conference scheduled in 2000 is likely to be torturous, threatening the prospects for the negotiation of a ‘cut-off’ treaty currently being discussed at the Geneva Conference on Disarmament. As we can see, these potential consequences stem from American initiatives that go beyond and yet remain inscribed in the logic of the rejection

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of the CTBT. Is there therefore any underlying common theme linking all these initiatives, a radical doctrinal shift away from nuclear and ballistic arms control? To put it simply, are we not moving from non-proliferation to counter-proliferation? The current non-proliferation regime is based on preventive and multilateral legal instruments, at the heart of which lies the NPT, with the CTBT as an additional component. It assumes that the contracting parties will respect their obligations, that the verification mechanisms are credible and that every state has the legal right to define the conditions of its security and more generally to negotiate the manner in which international security is to be organised. It is these assumptions that are being called into question: there is a significant doctrinal current in the United States that is increasingly challenging the effectiveness and consequently the appropriateness of multilateral preventive regimes. It is argued that there is no adequate guarantee to ensure the adherence to such regimes; their verification is costly, random, if not impossible; the national security interests of the United States get sacrificed at the alter of a multilateralism that concedes far too much to cheaters; and finally, in the absence of the concrete universality of these instruments, the states have a free hand to decide whether or not to be a part of them. Accordingly, the NPT, though necessary, is not sufficient, as the Indian and Pakistani proliferation has shown. Counter-proliferation is based on a different logic, which is unilateral, discriminatory and repressive at the same time. Regardless of pre-constituted international norms, it calls for an arsenal of measures to exert pressure, including the use of armed force against states that may attempt to acquire or use weapons of mass destruction. It is unilateral because it rests on a definition of behaviour prohibited by the United States and possibly their allies and can only be implemented by the United States or with its collaboration. It is discriminatory first and foremost because it is unilateral and because it does not target all states equally; it is not directed against the allies of the United States but their adversaries, principally ‘rogue states’, small states deemed nefarious by the United States. It is repressive because instead of building the confidence that results from the conclusion of multilateral agreements, it creates a selective distrust of a few, followed by concrete action if need be. In certain respects, Iraq has served as a test bed for this doctrine after the withdrawal of the UN Special Commission (UNSCOM) and the recourse to aerial bombardment by the Americans and British. In these conditions, there is no need for a prior agreed-upon international norm. The rejection of the CTBT may thus be seen as another step towards the implementation of this doctrine without it being stated openly. If we push this analysis to its limits and if we add to it suspicion or the worst-case scenario hypothesis so dear to American strategists, the American attitude would then appear to be part of a concerted plan, not merely a revealing slip. It may be argued that the Presidential administration did not

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really exert itself to push through the CTBT, that its failure was expected (see Sitt’s article referred to above) and that the executive authorities were not unduly upset by the Senate vote against it. The prospect of any challenge to this vote, in any case only possible after the next elections, thus remains uncertain. When all is said and done, it is a democratic administration, traditionally more favourable to preventive and multilateral arms control, which has to take the responsibility for this failure. On the other hand, we have the example of the SALT II Treaty: even though it did not clear the hurdle of the Senate in 1980, the United States agreed to respect its provisions for several years. Is it not inconceivable then that there exists a tacit understanding between the Presidency and the Senate, the rejection of the CTBT allowing the United States to keep all its options open, with the Presidency washing its hands of the Senate vote in international fora while getting all the mileage from statements in favour of the Treaty? Nothing, however, allows us to substantiate the thesis of duplicity; rather, the transparency of American institutions seems a priori to exclude proof. Yet the fact remains that this American ambiguousness is at least accepted.

III. Accepted Ambiguity There is ambiguity at several levels: between a ‘bad’ Senate and a ‘good’ Administration; between the benign hypothesis and the malevolent hypothesis; between preventive multilateralism and repressive unilateralism; between general rules and specific solutions. Before going any further, one can straight away exclude certain aspects of both the benign and the malevolent thesis. Thus it seems premature to state that the importance of nuclear technology has changed radically: it continues to underlie the gamut of problems related to international security, which is why the risk of proliferation remains and may have even been heightened, and why nuclear weapon states are not willing to give them up, though they are prepared to accept substantial arms reduction. On the other hand, it would be an exaggeration to say that the United States could dispense with multilateral rules and become the champion of a counter-proliferation scheme for its exclusive use. It is not unreasonable to think that one of its long-term objectives is to become once again the sole nuclear power in a kind of replay of 1945, a justifiable objective in its eyes on account of its power and the virtue of being the only state that has global capabilities and responsibilities. But coercion is not the answer. A circuitous way of achieving this would be to get others to accept obligations and restrictions from which the United States alone would be free. The American attitude towards the CTBT is an indication of this: Americans do not challenge the idea of a common law, but this law is above all for others. The ambiguousness between multilateralism and unilateralism is not restricted to the field of non-proliferation. It can also be seen in the banning

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of anti-personal mines and the setting up of an International Criminal Court: the United States does not dispute the existence of multilateral rules and regulations, but the conditions it imposes on America’s adherence to these rules are such that it is tantamount to excluding it from their ambit. Apart from security matters, the same ambiguity is visible when it comes to the Law of the Sea and international trade laws. As far as the Law of the Sea is concerned, we know that the United States agreed to be a party to the Montego Bay Convention only in 1994; it had refused to sign in 1982, after getting the Convention modified to suit its views and in accordance with procedures completely foreign to the law of international treaties. Its initial rejection thus resulted in the treaty being changed even before it had come into force. As for trade regulation, it is clear that the United States intends to maintain outside the formal framework of the Marrakech Agreement a unilateral regime of countermeasures defined by its legislature against states not submitting to American decisions—and this in spite of a specific conflict resolution mechanism. True, international law does allow for such a policy of countermeasures, but their current regime has been defined essentially by American practice. Unilateralism thus practiced presents several alternative characteristics. The first alternative distinguishes the unilateralism of protection from the unilateralism of projection. The two complement more than they oppose each other. The unilateralism of refusal or protection is when the United States shirks from obeying widely accepted international rules—as in the case of the CTBT and as it was with the Montego Bay Convention. However, it would be wrong to compare it with isolationism, for it does not prevent the United States from acting at the same time to win acceptance for its position. The unilateralism of affirmation or projection is when the United States wants to impose on others its own national decisions, a common feature in the field of international trade. The second alternative makes a distinction between unilateralism without any international rules and unilateralism within the framework of an international regime. Once again, the two coexist. Unilateralism develops in the absence of international rules—for instance when the United States imposed ‘sanctions’ on India and Pakistan despite the fact that their nuclear tests did not contravene any of their international obligation. It also develops by supposedly taking recourse to international rules, as was the case when the United States bombarded Iraq because in its view Iraq did not comply with Resolution 687 of the Security Council. It has also been internalised by multilateralism and the countermeasures taken alongside with the World Trade Organization (WTO) mechanisms. As for the rejection of the CTBT, it does not exclude multilateralism completely, since, as we have said, it leaves a residue of minimum obligations that weigh on all the signatories by virtue of general international law. Another aspect of this ambiguousness has to with the choice between general rules and specific solutions. Such solutions may be based on bilateral

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agreements or special regimes that supplement the general rules. The United States does not challenge a priori multilateralism, for instance in the field of the non-proliferation of nuclear weapons or the banning of biological and chemical weapons. But the United States seems to consider this as one of many frameworks, not intended to provide a matrix for a mechanism of implementation subordinated in every case to these founding rules. This is how preferential bilateralism developed alongside or alternatively in American–Soviet relations—for example in the case of nuclear tests, there were bilateral treaties to place limits on underground tests after the Moscow Treaty of 1963; and again in the case of outer space, the ABM Treaty was signed after the Space Treaty of 1967. Another technique, though in keeping with the same logic, is to maintain collective unilateral regimes in spite of the existence of a multilateral regime—this is the case of the ‘Australian Group’ for the Convention on the Elimination of Chemical Weapons. It may also be recalled that with respect to the danger posed by the dubious activities of North Korea, the Americans chose to deal with the matter at the regional, even bilateral, level and not within the multilateral framework of the NPT. Eventually, they returned to unilateralism, as no treaty, bilateral or multilateral, was acceptable to the United States if it did not allow for or even consecrate the role of ‘national technical means’—in other words, Americans surveillance systems—as the basic verification element. The outcome of these various ambiguities seems to be that the United States lacks a coherent and consistent doctrine in this regard. Instead, it is practicing an instrumental opportunism at the institutional, normative, material and operational levels. It is institutional insofar as it may be advantageous to act within the framework of the United Nations, failing which, other institutions such as NATO may be used for cover. It is normative insofar as a multilateral regime is one among many instruments; it is neither exclusive nor pre-eminent. On the one hand, it may be preferable to fragment problems and settle them only with those that are directly involved; on the other hand, an ad hoc approach may prove to be better adapted than the abstraction and uniformity of general rules. It is material because while general regimes seem preferable in the field of economic exchange, specific solutions tend to prevail in the domain of security. It is operational insofar as collective action is often preferable to purely unilateral action, but coalitions are of variable geometry and tailored to meet specific objectives—the coalition against Iraq is not identical with the one acting against the Yugoslavian Republic in the matter of Kosovo, and the former is getting reduced progressively to an Anglo-American one. However, the United States is always at the heart of all coalitions, which would fail to exist without it. Assuming a collective aspect is also one of the dimensions of unilateralism, but this should not conceal the essentially unilateral nature of the operations in question.

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IV. Conclusion As we can see, the idea that one can contrast a unilateralist and isolationist Senate with an internationalist Presidential administration is not merely simplistic but false. The other viewpoint that this apparent opposition is in fact a way of distributing roles and that the ambiguity is part of a deliberate strategy can hardly be proven. The ambiguity seems more to be an accepted fact than a ploy. Nonetheless, it shows how American interests prevail over all other considerations—in other words, US domination acts in its own interest and to its own advantage. It is one of the elements that helps to distinguish hegemony from leadership, for leadership implies a certain capacity for self-sacrifice and the ability to transcend its immediate interests for the sake of collective interests—the United States demonstrated this during the founding of the United Nations, the Marshall Plan and the conclusion of the Atlantic Pact. Unlike leadership, hegemony has no grand design other than its own conservation and development. It follows that while leadership can be acceptable and even desirable for the others to the extent that it acts for the benefit of all, even if to different degrees, hegemony is by its very nature predatory and ultimately unacceptable. Once it has been identified as such, hegemony is bound to be challenged and is thus not conducive to stability; rather it generates instability and insecurity. The attitude of the United States towards the Comprehensive Test Ban Treaty is indeed revealing. The pleas of the European allies, especially Germany, France and the United Kingdom, fell on deaf ears, even though they were not counterproductive. Yet for all that, one cannot compare, apart from superficial similarities, the Senate rejection of the CTBT with the rejection of the Treaty of Versailles and the League of Nations by the Senate eighty years ago. That led to a return to isolationism, one of the causes and not the least of the Second World War into which the United States got dragged despite itself. Today the rejection of the CTBT does not in any way signify that the United States intends to withdraw itself from the organisation of international security. On the contrary, it shows that Americans want to determine its shape, but purely in relation to their own interests, in accordance with their own procedures and with the aim of strengthening their domination.

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24 At Risk: Disarmament within the New International Security Context*

T

HE TWENTIETH CENTURY was marked by unprecedented development of the disarmament enterprise. Whether we call it disarmament, reduction, limitation of armaments or arms control, and even if the methods and their results have varied, the general inspiration was the same—contributing to international security and conflict prevention via interstate agreements for the restriction of armaments.1 Furthermore, it was hoped that the promotion of a climate of mutual trust would lead states to consider themselves sheltered from the potential of being outpaced at either the qualitative or quantitative levels, and they would as a consequence either implicitly or explicitly seek to limit themselves to an agreed-upon level. Unsurprisingly, these developments took place in the wake of World War II. The years following World War I had actually witnessed a precipitated failure for disarmament. It is generally accepted that the scourge of two successive world wars and the consequences and horrors of their destruction, coupled with the sinister prospect of nuclear war, generated the disarmament climate, along with a wider goal to prohibit international violence and, in an unprecedented fashion, to limit states’ right to use armed force in international relations. Such a presentation of history could immediately seem excessively normative and be met with scepticism or irony, as it could be easily countered with contrary evidence. Indeed, notwithstanding these efforts, the race for arms and nuclear weapons reached great heights during the same period. Some even argue that arms control contributed to the arms race by allowing for weapons research and development within fields * Previously published as “L’entreprise du désarmement au péril du nouveau contexte international de sécurité”, in (2004) Annuaire français de relations internationales 727–47. 1 Disarmament aims to eliminate existing armaments from a global perspective. Arms reduction has the same objective, though a more modest agenda. Arms limitation concerns mostly the renunciation of or the establishment of limited thresholds for new production. Arms control aims to adapt the nature and the number of weapons to an agreed-upon level in order to maximise state security: the production of new types of arms is therefore acceptable, as long as they do not exceed certain limits. Such measures, and the politics of arms control in general, dominated strategic American–Soviet relations for three decades, particularly at the nuclear level, which led to criticism, especially by non-nuclear states, as arms limitation legitimised nuclear weapons and, as a result, American–Soviet dominance in the arena.

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untouched by the agreements. One could also say that the incidence of conflict was at an all-time high—and more deadly. Disarmament did not focus on small arms, or even on less conventional munitions, both of which continued to be used on a wide scale. Furthermore, the disarmament enterprise was politically neutral, even conservative, because it did not question the hierarchy among states. On the contrary, it actually contributed to the consolidation of existing hierarchies by managing frustrations and efforts to upset it. If disarmament imposes a burden that must be shouldered by its protagonists, many states have not perceived it as fair or proportional. They believe that the game is played to their detriment, and their participation in multilateral treaties has demonstrated that they perceive such treaties as a partial constraint upon their security rather than as a substantial advantage for it. This is particularly the case with the prevention of nuclear weapon proliferation. Nevertheless, the strategic international debate largely became polarised around disarmament, specifically vis-à-vis nuclear arms control and nonproliferation. The end of the East–West confrontation looked set to make nuclear strategy less of a central concern, and many thought it would facilitate and accelerate the disarmament project, especially considering that the reduction of nuclear weapons and the total prohibition of nuclear testing seemed to be progressing promisingly. In recent years, however, the opposite has occurred: not only has the risk of nuclear proliferation and of weapons of mass destruction (WMD) been reinforced, but their existing control mechanisms have been weakened. How to understand and appreciate this situation? It is first of all important to remember the specific characteristics—and limits—of the disarmament enterprise (section I). It is then appropriate to evaluate the reasons behind such a situation (section II) before analysing the attitude of the major protagonists in the field, from not only their public statements but their actions as well (section III).

I. A Heritage in Danger On first assessment, the contemporary disarmament enterprise seems impressive.2 It consists of agreements and instruments that are diverse in nature and content. Indeed, they are not assembled as one document articulated around common principles that could serve as codification on disarmament and as a reference for future developments. Instead, even a rapid inventory reveals that these instruments are disparate and always subject to 2 The best analysis of the contemporary disarmament enterprise is a synthesis study: J Goldblat, Arms Control: A Guide to Negotiations and Agreements, 2nd edn (London, Sage, 2000). For an evaluation of the recent period, see J-F Guilhaudis, ‘La maîtrise des armements et le désarmement, dix ans après la Guerre froide’ (2001) 2 Annuaire français de relations internationales 3–31.

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security considerations, so that their stability depends highly on the conditions that permitted their existence.

A. A Short Inventory of the Disarmament Enterprise Disarmament, the core legacy of which still exists, has many characteristics. In its results, if not in its objectives, it is very limited; it has not been able to achieve a general and complete disarmament, even if its rhetoric makes use of the concept.3 It does not constitute a global and independent security system but rather an auxiliary to those already in existence, especially nuclear deterrence, which in part brought about the co-management of the problem by the United States and USSR.4 Under these conditions, the preference was to deal with nuclear weapons and their delivery systems, as well as other WMD, which could interfere with deterrence, even if these weapons were not the sole target of arms control.5 This approach to disarmament therefore does not by itself ensure the maintenance of peace but serves as an instrument of confidence between states. The methods of disarmament rely on two main types of measures: on one hand a series of treaties that create legal obligations between the parties; and on the other, more flexible instruments that, though not legally binding, still require state engagement. This second type could be called ‘soft disarmament’ because of its authority and its object. Both methods can be employed in tandem or separately. Let us leave aside the formulas for coercive disarmament that result from the mandatory Resolutions of the Security Council, as they are particular reactions to immediate threats to international security—the Resolutions dealing with Iraq and the post-September 11 period being cases in point.6 3 The final document of the first extraordinary session of the UN General Assembly in 1978, which was devoted to disarmament, continues to constitute the core of the UN doctrinal and institutional involvement in the enterprise. It uses this leitmotiv: ‘general and complete disarmament under effective international control’. 4 Born in 1961 out of empiric conditions, arms control inspired most of the American–Soviet Accords and constituted the basis for most of their multilateral treaties. With regard to nuclear weapons, arms control tends to stabilise deterrence and organise strategic and bilateral dialogue as well as the non-proliferation of nuclear weapons; there is no aim to totally eliminate nuclear weapons. On the contrary, arms control recognises the stabilising effects of nuclear deterrence. Arms control has dominated strategic debates for the past two decades, until the Strategic Defence Initiative (SDI), presented in 1983 by President Reagan, redefined the concept of nuclear deterrence and therefore the very foundations of arms control. For a long time the United Nations used the term ‘arms control’ only in reference to the American–Soviet strategic dialogue and preferred to use ‘disarmament’ or ‘arms limitation’. Since the end of the East–West confrontation, the term ‘arms control’ has been used on a universal scale. The meaning of ‘enterprise’, however, has evolved and now concentrates itself on non-proliferation, even against proliferation of all weapons of mass destruction (nuclear, biological and chemical). 5 This is why the Treaty on Conventional Armed Forces in Europe (CFE) (1990) concerns artillery and armoured tanks. 6 Resolutions 687 (1991) and 1441 (2002) in the case of Iraq; Resolution 1373 (2001) in the case of the September 11 terrorist attacks.

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The Resolutions have a lot of potential importance for disarmament, yet by the same token, the Security Council regrettably failed to explore Article 26 of the UN Charter further.7 However, in the present context, the actions of the Security Council seem limited to exploring potential options rather than based on a consistent set of means.8 In contrast, the technique of treaties uses all the variety permitted in international law: multilateral treaties,9 as well as regional10 and bilateral11 treaties, especially between the United States and the USSR—which have often been necessary precursors to successful multilateral treaties.12 These multilateral treaties lean towards universality without ever really reaching it, as they have always faced opposition from major states.13 The focus of these treaties have concerned more and more diversified weapons, at the same time as they have been ambitious in terms of objectives14 and more intrusive in terms of verification.15

7 Art 26 of the Charter empowers the Security Council to formulate ‘plans to be submitted to the members of the United Nations for the establishment of a system for the regulation of armaments’, a facility yet to be employed. We must, however, underline that the initial inspiration of the Charter was not disarmament but rather collective security, which implies the use of armed force by the Council against states that have been the source of aggression or that pose a threat to international security. 8 The Council has therefore adopted Resolutions concerning relative principles that guarantee security in favour of non-nuclear states with regard to the NPT (Resolutions 255 (1968) and 984 (1990)). A declaration of the Council President on 31 January 1992 stated that the proliferation of weapons of mass destruction constitutes a threat against peace and security. Certain treaties, like the Treaty on the Prohibition of the Emplacement of Nuclear Weapons and Other Weapons of Mass Destruction on the Seabed and the Ocean Floor and in the Subsoil Thereof (1971), allow seizure in case of dubious activities. One can also add measures, taken within the framework of peacekeeping operations, that lead to the voluntary disarmament of factions in cases of the settlement of internal conflicts. These diverse measures are not included in Art 26. 9 For example, the Partial Test Ban Treaty (1963), the Outer Space Treaty (1967), the Nuclear Non-Proliferation Treaty (NPT) (1968), the Convention on Biological Weapons (1972), the Chemical Weapons Convention (1993) and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) (1996). 10 For instance, the treaties on denuclearisation of certain regions: Tlatelolco for Latin America (1967); Rarotonga for the South Pacific (1985); Bangkok for Southeast Asia (1995); Pelindaba for Africa (1996); and even the Treaty on Conventional Armed Forces in Europe (1990). 11 Especially the SALT I and the ABM Accords of 1972, the START I (1991) and II (1993) and the INF on Intermediate-Range Nuclear Forces Treaty (1987). 12 This is especially the case for the Extra-Atmospheric Space Treaty (1967) and the NPT (1968). 13 Especially India, Israel and Pakistan vis-à-vis the NPT, which China and France joined only in 1992 and from which North Korea decided to withdraw in 2002. 14 See, for instance, the Treaty between the United States and the USSR on the Elimination of their Intermediate-Range and Shorter-Range Missiles (1987), the Chemical Weapons Convention (1993) and the Comprehensive Nuclear-Test-Ban Treaty (1996). 15 Starting with the Washington Treaty, inspections regimes have been systematic, keeping in mind the rapid development of the methods. On the subject, see S Sur, ‘Vérification en matière de désarmement’ (1998) 273 Recueil des cours de l’Académie de droit international 13–102.

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These treaties are and have always been precarious and revocable. They are precarious because they target only existing weapons or arms that are about to exist, and any future arms race therefore escapes their ambit. They are incapable of banning research or the design of new weapons systems. These treaties are therefore more interested in the past or the potential of the present rather than in the future. As intrusive as their verification methods can be, they can never be absolute: there is always room to doubt their respective effects.16 Since they are not really universal, they have, by nature, grey zones, which their parties can take advantage of. These treaties are also revocable for several reasons. On the one hand, they were concluded for periods of peace, and their existence is affected by the advent of conflict. In other words, they do not come from jus in bello, except for the marginal ones that concern humanitarian law.17 Moreover, it is always possible that a state will withdraw with only a simple notification of its intent to do so,18 meaning that the fundamental political and strategic conditions that brought about the treaties in the first place must more or less be maintained. The instruments of soft disarmament are also very diverse. Examples include the Helsinki Final Act (1975) and other instruments adopted during the Conference for Security and Co-operation in Europe (CSCE) process, the Memorandums of Understanding (MOU) of the American–Soviet bilateral accords19 and other guidelines or codes of conduct accepted by countries exporting restricted technologies that target the control of their diffusion, with or without the participation of importing countries. Such instruments do not aim at being universal in participation, even if their effects tend to be universal. What they have in common is their non-binding character:

16 Verification can never be positive, meaning that it cannot fully guarantee the total respect of commitments. It leads only to negative conclusions, ie, that an act of violation has been committed. From the legal perspective, there is a presumption of respect for commitment; on the political side, it all depends on the trust put into the inspected country. It is at this level that the divergences between the United States and France came about regarding the case of Iraq: the United States sought positive verification, while France stated that the inspections regime could no longer be of good faith in going beyond a negative verification. 17 Treaties that concern disarmament are concluded for peace times, and their continuation is affected by the state of war, like the event of legitimate defence. On the other hand, humanitarian law is usually applicable during times of armed conflict, except in extreme cases of selfdefence, when the survival of a state is in danger (to quote the International Court of Justice: Opinion of the 8 July 1996 on the use of nuclear weapons). Humanitarian law does not consider the existence of weapons but rather their use. Among the treaties that concern humanitarian law—more than or as much as—disarmament, are the Geneva Protocol (1925), which prohibits the use of chemical or biological weapons, and, at least partially, the Chemical Weapons Convention (1993). 18 Many relevant treaties allow for unilateral withdrawal with only six-month notice if there are pressing national security reasons for the state in question. However, the state party must, especially in the case of the NPT, inform the Security Council of its intention and reasons. 19 The MOUs attempted to provide technical precision to the commitments resulting from the accords. They often contained specific procedures for fulfilling commitments.

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they rely on voluntary and permanent cooperation between the parties, via framed and directed cooperation. They are also more flexible than conventional instruments by being easily adaptable to new developments. In practice, they can constitute a framework for stability, carrying more weight in the respect they garner than for their ability to coerce. They can even have their own verification mechanisms, the Stockholm Document being a good example.20 Soft disarmament instruments can fulfil different tasks. Some contribute to the preparation of real treaties (such as the CSCE process for the Treaty on Conventional Armed Forces in Europe (CFE)); others accompany and complete the implementation of bilateral, regional or multilateral treaties (such as the MOU or the final declarations of the examination conferences of multilateral treaties).21 They can exist independently in fields that are not covered by mandatory accords, as in the case of the Wassenaar Arrangement, which concerns the exportation of restricted technologies.22 Their signification can be contradictory, if not ambiguous. On one hand, as previously noted, they play a large role in disarmament treaties that rely on reciprocity or symmetry.23 On the other hand, they can be discriminatory by aiming to limit transfers of technologies or materials to certain states—eg, the London Club in the field of nuclear material or the Australian Group in the field of chemical weapons.24 Such discrimination, though it may seek to guarantee international security by preventing the proliferation of weapons, is seen as wrongful by the concerned countries. While such instruments could constitute a starting point for or even a technique of coercive disarmament and anti-proliferation, they also run up against larger efforts at trade liberalisation.

B. Growing Concerns During the decades of the East–West confrontation, the arms control dynamic centred around the essential components for international peace— or rather the absence of global conflict. The end of the socialist bloc and of the USSR, combined with a new political and strategic landscape, led to a spectacular review of the disarmament enterprise. Do the current problems stem from a crisis of adjustment? From debate over methods, objectives or even the very notion of disarmament upon which major decisions of pre20 Adopted during the CSCE process, this Document was even accepted by the USSR as an on-site inspection mechanism. 21 See Goldblat (above n 2). 22 On this matter, see R Prenat, ‘Les Régimes multilatéraux de maîtrise des exportations de technologies sensibles à l’utilisation militaire’ (1998) Annuaire français de droit international 298–311. 23 For example, the NPT is reciprocal but not symmetrical: the consent of the parties is identical, but the obligations of nuclear and non-nuclear states differ. 24 See Prenat (above n 22).

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vious decades were based?25 Or is there a more fundamental crisis that makes not only the legacy but the entire disarmament enterprise obsolete, as President Reagan remarked in his 1983 Strategic Defence Initiative (SDI) speech concerning nuclear weapons? The effects of questioning the disarmament enterprise are too well known to be brought up again in this context. They concern the dynamics of the enterprise as much as its accomplishments. The dynamics of the multilateral enterprise of disarmament have been stymied for several years,26 and after adopting an agenda, the Disarmament Conference in Geneva is now struggling for a raison d’être. This general weakness is not compensated by regional and bilateral accords or by coercive mechanisms from the Security Council, where assessment remains minimal.27 As for the accomplishments of the enterprise, previous agreements themselves are at stake. This is most evident when the United States denounced the ABM treaty; when the US Congress rejected the CTBT; when India and Pakistan publicly proceeded to nuclear tests; and when North Korea withdrew from the NPT and undertook a nuclear armament program, paving the way for other wouldbe proliferators, like Iran, that were discreet for some time but watchful.

II. The Reasons behind the Erosion of the Disarmament Enterprise It would no doubt be a mistake to blame the September 11 attacks and their aftermath for the erosion of the disarmament enterprise. While the event definitely accelerated and highlighted this erosion, the writing was already on the wall. It is rather the confluence of several factors that has affected the dynamics of the enterprise, including doubt about the effectiveness of existing instruments; the development of new and unpredictable threats to security; and more generally, the development of a general climate of mistrust in international relations, which no longer allows for the necessary trust levels that preventative mechanisms rely upon.

A. Doubts about the Efficiency of Existing Mechanisms While this doubt is not in itself new, it has been on the rise in recent years. In part, the Iraq affair (as far back as the 1990s) contributed to it, showing 25 It is easy to remember the difficulties of arms control in the early 1980s, with the nonratification by the United States of the SALT II Accords (1979), the Euromissiles Crisis and the Strategic Defence Initiative of President Reagan. These difficulties were positively resolved with the dismantling of the Euromissiles. 26 P Dahan, ‘La Conférence du désarmement: fin de l’histoire ou histoire d’une fin’ (2002) Annuaire français de droit international 196–213. 27 Especially because of the American desire to end the inspections regime in Iraq, which was based on Resolution 1441. The failure of that regime was not at all shown, in fact quite the opposite. The potential of the Security Council in the field in fact remains intact and should be more deeply explored.

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that, at least in the eyes of the interested states, no decisive outcome could result from intrusive verification procedures and mechanisms. There were no obstacles to the inspections of the Iraq territory and installations. Iraq was subject to an imposed disarmament, reinforced by several coercive measures taken under Security Council authority, in addition to which was a continuous bombing campaign.28 Yet there were still serious reasons to believe that Iraq was hiding prohibited weapons. How then not to question the efficiency of the instruments, which rely on voluntary participation and on far from powerful inspection mechanisms in cases where there is lack of political transparency and where the intentions of the states are ambiguous? Furthermore, the lack of any kind of significant reaction to other transgressions becomes problematic: similar activities in North Korea, it could be said, have simply been noted and in fact tolerated. This crisis of confidence in verification contrasts greatly with the hopes of the previous decade. Considerable qualitative progress was made, beginning with the Intermediate-Range Nuclear Forces (INF) Treaty (1987) and including Resolution 687 (1991), the Chemical Weapons Convention (1993) and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) (1996). Not only did verification regimes become more intrusive, but corrective measures were also established in case of breach of commitments.29 To this crisis in confidence must be added doubts concerning the adaptability or sufficiency of the prohibitions contained in the treaties: banning nuclear tests cannot guarantee non-proliferation, as the case of Israel has shown for quite some time. The existence of dual-use technologies makes the prohibition of certain armaments random. Realistically, research can always be conducted, and the passage from research to development is often prompt. The incessant development of civil technologies leaves a wide berth

28 Resolution 687 of 3 April 1991 submitted Iraq to strong disarmament obligations with regard to WMD, as well as an ill-defined verification process under Security Council authority, entrusted to a subsidiary organ, UNSCOM, with the assistance of the International Atomic Energy Agency (IAEA). This resulted in the elimination of most prohibited weapons, but serious doubts persisted, especially in the case of biological weapons. The difficulties experienced by UNSCOM led to the withdrawal of the mission in 1998. Claiming violations of Resolution 687, the United States and the United Kingdom regularly bombarded zones of suspicious activity in Iraq. The inspections regime was then re-launched in 2002 with Iraqi consent, under the aegis of Resolution 1441, and it continued without interruption until the invasion by the United States and the United Kingdom. 29 With the treaties in question, especially the Chemical Weapons Convention and the CTBT, the goal is not to take coercive measures against violations but rather to place collective pressure in the case of a potentially delinquent state in order to facilitate adherence to the treaty. Such measures favour the application of the treaty’s measures and therefore favour an execution process rather than sanctions reprimanding violations. It is therefore an executive rather than a repressive logic, conforming to the voluntary nature of the engagements accepted by the states. See Sur, ‘Vérification en matière de désarmement’ (above n 15).

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for military or other hostile applications that are only revealed later, and these are just a few examples.30 We can add to that the lack of concrete universality of the disarmament treaties, which, for example, allowed India and Pakistan to become nuclear states. More generally, the growth of diffuse security threats tied to the proliferation of WMD must also be underlined. Actually, these factors are not new. In order to change the perception of the instruments’ efficiency and to erase doubts about the utility of concluding new ones, the new political and strategic contexts must be combined with a consideration of new potential threats.

B. New Security Threats With regard to new security threats, emphasis must be placed upon those linked to international terrorism, especially when it benefits from the clandestine assistance of certain states. At subject here is the ‘Axis of Evil’ that was vigorously identified, denounced and combated by the George W Bush administration, especially after September 11. Though this ‘Axis of Evil’ may be considered to be at the core of these security threats, it does not embody all of them. They are simultaneously larger and more diffuse. One can establish a distinction between governmental or state-led threats, nongovernmental threats and finally, those that are a combination of both. i. Government-Led Threats Government-led threats are not only those attached to the nefarious intentions of some governments and to their actual or potential hostile capacities. Such a hypothesis is too simple. These threats also derive from the deficiencies of some weak or unpopular governments that are faced with internal conflict, which creates violent chaos, generates regional crises and thus progressively pose a threat to international stability. One reaction, which is generally the first, even though it is not admitted, can be simply to contain the conflict—cordon it off and wait to douse its flames once the combatants have grown weary of the fight. The traditional model of the nation-state—in particular its efficiency vis-à-vis the maintenance of peace and order and its role in international security—sometimes breaks down and leads to failed states, whose anarchic environments are unpredictable and contagious. Classical legal solutions no longer seem useful, given the increasingly unpredictable character of 30 For a long time, military research was more advanced and could subsequently contain civil applications—in the fields of spatial or computer exploration, for example. In recent years, the situation has become inversed, and it is civil research that tends to precede eventual military applications. As such, predicting which technologies will have nefarious uses and their eventual restrictions is more difficult.

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international situations. Such classical legal approaches rely on the possibility of an indefinite stability and are therefore unable to adapt to sudden or violent changes. Certainly, such unpredictable situations go beyond disarmament in the strictest sense of the term. They do concern it, however, in many ways. They underscore the deficiencies of the enterprise with regard to small weapons,31 which permit massacres and other deadly attacks, and they also point out the lack of fungibility of the instruments currently in force. By creating essentially lawless zones, they open an avenue to all forms of traffic, facilitating prohibited trade. Such situations also contribute to the development and establishment of sanctuaries for terrorist networks capable of exporting violence at the international level—and the events of September 11 showed their brutal efficiency.32 Pre-September 11 Afghanistan, certain Asian countries, the Middle East, large areas of the African continent and even North Korea illustrate the potential of these different threats emanating from non-state actors. ii. Nongovernmental Threats The global awareness of nongovernmental threats came late, and the events of September 11 played a large role in finally bringing it about. Why such a delay? First of all, there was a longstanding, almost exclusively positive image of nongovernmental organisations (NGOs) and civil society, which were considered modest and compassionate partners in international relations. After all, the most high-profile NGOs and largest popular movements fight for disarmament. The increasing number of partnerships with NGOs during international negotiations has indubitably led states to believe that these organisations are benign; such partnerships conferring upon nongovernmental groups a presumption of legitimacy, such that their good conduct is merely assumed. We must also focus on the fact that transnational trafficking and international organised crime has grown in importance as a result of opening borders and liberalising trade. What used to be viewed as a concern of the police and possibly the judiciary now has effects on a wider level, a sort of infra-security level that is not quite international but nonetheless goes beyond the local or regional. The threats of these networks were once considered of a fundamentally civil transnational order, calling for surveillance and interstate cooperation, but not in the military sense—not as a matter of international security. One knew very well, though somewhat abstractly, that international criminal rings often deal in prohibited weapons and that 31 Regarding small weapons, efforts towards transparency are obstructed by the inability to control circulation and trafficking. S Sur, ‘Le contrôle des flux d’armes légères et la prévention des conflits interétatiques’ in Mélanges Raymond Goy (Rouen, Presses universitaires de Rouen, 1998) 399–410. 32 On this matter, see the articles devoted to September 11 in (2002) 3 Annuaire français de relations internationales.

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they could be a threat to non-proliferation. However, it was only after September 11 that these networks erupted on the scene as international security problems of the first order. One must therefore measure the independent and diffuse peril that they represent and recognise how ill-equipped the classical instruments of disarmament are vis-à-vis this threat. They do not directly address prohibition with such networks in mind; they lack appropriate surveillance and organised verification measures; and they depend solely on the domestic vigilance of concerned states and on the international cooperation of state police forces. Non-state actors can, however, acquire a range of weapons—and not on a negligible scale. They can acquire conventional weapons in order to mount terrorist attacks or fuel subversive movements. They can acquire dual-use technologies or components of chemical and nuclear weapons via trafficking or contraband; they can obtain chemical and biological weapons, as the Aoun Sect showed in Japan; finally, they can attain missiles and other types of delivery systems. They seek invisibility and tend to reconstitute themselves once they are dismantled. Their increasingly central role demands new strategies and methods not included in earlier disarmament previsions. Only since the adoption of Security Council Resolution 1373 has there been a comprehensive effort to engage with this problem and all of its exigencies.33 Knowledge about the existence of clandestine cooperation between these networks and certain states, or between the networks and certain public authorities within states, returns us to a more conventional security arena. Hence the George W Bush administration’s ‘Axis of Evil’, in which Taliban-ruled Afghanistan was the exemplary case. Identifying, naming, denouncing and combating these states is, however, easier said than done. The ‘Axis of Evil’ could be narrowly defined as including those states collaborating with terrorist networks in order to obtain WMD and encouraging international terrorism. In a wider sense of the term, we can also add states in which the state system—either through liberalism, weakness or corruption—allows these networks to benefit from asylum, operating bases and sanctuaries in which to train or retreat. In the case of both states voluntarily cooperating with terrorist networks and weak states that are unable to impede the activities of such networks, the situation is easier because the concerned actors are states, the principal actors in international relations. It is simpler to then separate these states into two categories: those that involuntarily provide assistance to terrorist 33 Resolution 1373 (28 September 2001) contains a series of obligations for all states regarding prevention and the fight against international terrorism, establishing surveillance and assistance mechanisms for the adaptation of domestic legislation, under the watch of a subsidiary organ of the Security Council. Even if it is not its main objective, this mechanism helps to identify the states either not at all or poorly fulfilling their obligations and thus to bring about such the designation of such states as complicit in international terrorism.

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networks and those that purposely and secretly cooperate with them. However, the line is not always clear, and if countries like Germany and the United Kingdom are not suspected of complicity with such networks, classification of countries like Pakistan or Saudi Arabia, though they are not classified as part of the ‘Axis of Evil’, is perplexing. Such indecision, added with the risk of proliferation and the increasing unpredictable character of unseen, mobile actors, contributes to the unprecedented sense of mistrust in international relations. In such an atmosphere, accords on disarmament and arms limitation cannot prosper.

C. From Confidence to Mistrust A climate of mistrust is probably the most decisive factor behind the doubts of the disarmament enterprise or of arms control. Over the past decades, a climate of trust was developed progressively, and enough cannot be said about the positive role of the confidence- and security-building measures adopted during the Helsinki process.34 The Helsinki process was not the only source of such interstate confidence, however; US–Soviet arms control was another. The nuclear dialogue and the objective convergence of the subjective interests between the two powers seeking strategic stability were without a doubt essential, and the pan-European process stepped into the limelight when the US–Soviet convergence eroded over the European missiles crisis and the SDI. It is to this objective confidence that we owe the relative peace that accompanied the collapse of the USSR and the German reunification. It could also be noted that violence only occurred only in areas left out of this process: the former Yugoslavia, Albania, the Middle East. Furthermore, the only regions that seem menacing with respect to disarmament were those not concerned by these processes: notably the Korean peninsula, South Asia and Africa. The concept of mutual confidence thus became an organising principle of international security, and it was a fundamentally preventive one, fostering an environment in which the enterprise of disarmament could prosper. Formal international accords were not even necessary, as disarmament could have progressed unilaterally.35 It explains how the Europe of today is largely disarmed, perhaps even too much so in the context of the new security threats. While such threats may not necessarily imply a military response, they always assume a capacity for coercion, including an armed one, which implies the availability of adequately armed forces. Confidence in this instance does not necessarily mean the convergence of interests, nor that it is in itself a security system, but it implies a particularly 34 On this matter, see VY Ghebali, ‘Mesures de confiance de la CSCE: documents et commentaires’, UNIDIR Research Paper 3 (1989). 35 On this matter, see S Sur (ed), ‘Désarmement et limitation des armements: mesures et attitudes unilatérales’, UNIDIR Research Report (1992).

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predictable behaviour, which contributes greatly to the success of arms limitation measures. To establish a virtuous circle of cooperative security, preventive measures of security must dominate when compared with corrective or coercive ones. The events of September 11 and subsequent reactions broke this circle just as much as the attacks took down the Twin Towers and crashed into the Pentagon. With one fell swoop, emphasis was put on the coercive and repressive measures of security. The very concept of international security was globally affected by these events and by the US affirmation of their need for and right to individual security measures, which have taken precedence over all other considerations. More than just disarmament measures were called into question: the underpinnings of collective security were fundamentally affected, from the Security Council to traditional alliances like the North Atlantic Treaty Organization (NATO). Unilateral and ad hoc coalitions have come to the fore in response to today’s problems, replacing the collegial management of past decades. While this changing attitude is not at the origin of this reconstituted mistrust, it has contributed to its reinforcement. In much the same way that disarmament can prosper only in a climate of confidence, mistrust is allcorrupting. It spreads suspicion, pressures and divides instead of inspiring the unity of mutual confidence. The result is that attention is no longer paid to norms, alliance structures or collective organisation in general, or even to preventive mechanisms; instead, the focus is on the protagonists and their perceived individual security needs.

III. Protagonists and Positions The reasons behind the growing doubt in the disarmament enterprise in its present form are not all interstate related. Others include the growing diversification of players in international relations and the movement towards trade liberalisation. Still, states have to react to this new context and therefore remain the main protagonists of international security and of the control of armaments. While non-state actors can bring about new problems and even assist in redressing them, they lack the capacity to solve them. Solutions pass through states, whether they act individually, at the domestic or international level or even within an institutional or collective framework. This analysis does not seek to go into specifics but rather hopes to broadly define the diverse and general positions with regard to the disarmament enterprise, and as such, three principal approaches stand out: the American approach, which draws the most criticism today; the European approach, which is very attached to maintaining the current treaties and mechanisms but remains open to their evolvement and adaptation; and finally, the position of the remaining countries, consisting mainly of former neutral or nonaligned states that would like to see greater equality of states in the disarmament enterprise but lack the ability to achieve such a goal. On the

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margins of this disparate collection of competing opinions are those seeking to exploit general discord to develop their own weapons programs discreetly. As such, it is the either real or suspected rogue states that constitute one of the principal challenges to the classical understandings of disarmament, either preventive or consensual.

A. The United States and Flexible Asymmetry The United States is undoubtedly faced with a singular position with regard to disarmament today, and Americans exploit it. Not only do they consider themselves to be the principal target of the new threats, especially hyperterrorism,36 but they also view themselves as the only power capable of responding efficiently. From such a position, they draw two conclusions: first, they should be freed from international constraints vis-à-vis armament levels; and second, they have an unconditional right to use armed force. Certainly this position is more doctrinal than concrete, and yet the United States has been developing the position with relative prudence, proffering legal justifications, seeking either multilateral or institutional cover and acting unilaterally only as a last resort and if they estimate it to be within their national interest. The United States, however, does not accept other states claiming these same rights, except perhaps for Israel, a state with whom they tend to align more and more in rejecting rules and cooperative actions. Such behaviour is new. A long-time faithful ally of Israel, the United States did not to use these methods until recently, seeking recourse in force for preventive or coercive reasons, justified by the war on terrorism: suspected ties between Saddam Hussein and Al Qaeda were one of the reasons used to justify the 2003 Iraq invasion. Furthermore, the occupation of Iraq also aligns them with Israeli policies; it is unlikely that the United States would accept such tactics by other states. Such policy is therefore asymmetric rather than an exemplary model for others to follow, but it is conversely justified by their unique status as a global power and as the principal target of new threats. At the same time, it is a mobile asymmetry, as it is not contained within an overarching framework of stability in which friends and enemies can be easily distinguished. The friend–enemy distinction is in fact key and is more political than legal, often dictated by circumstance. Coalitions of the willing, to use Donald Rumsfeld’s famous term, are adapted to specific types of missions and are by nature in line with this ambiguous friend–enemy policy; such coalitions constitute a toolboxapproach to the needs of the moment. For instance, China could be relied 36 Following the formula of F Heisbourg, Hyperterrorisme—La nouvelle guerre (Paris, Odile Jacob, 2001).

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upon to react against North Korea’s nuclear ambitions but is excluded when it comes to the interdiction of the transport of dangerous materials on the high seas. Pakistan can be counted on when it comes to fighting against terrorism in Afghanistan, without necessarily receiving approval for its status as a nuclear power or for its missiles development. The Security Council is useful to the United States for programs preventing and repressing terrorism,37 but it can be ignored when it comes to the political reconstruction of Iraq. How does this mobile asymmetry translate in terms of disarmament? The answer seems to be a pick-and-choose attitude towards existing instruments: rejection of the CTBT, denunciation of the Anti-Ballistic Missile (ABM) Treaty, refusal of the Anti-Personal Mines Convention,38 refusal to develop verification procedures vis-à-vis biological weapons—but an attachment to the NPT; marginalisation of the UN weapons inspectors in Iraq but use of the IAEA instruments in Iran.39 Above all is an attachment to nonproliferation of WMD, while promoting a slide from preventive mechanisms toward corrective or coercive measures against proliferation. Though this is a situational rather than principled approach, the logic behind it is neither negative nor passive. In a way, it tends to simplify the problems by bringing them around to coercive or even violent options. As we know, pacific and political approaches tend to defuse heated disagreements and to diversify the issues and the options, while a warlike approach will most often simplify a problem by bringing it to a head, making it a black-and-white issue. It would surely be excessive and unfair to treat the American approach as so limited and hasty; it has after all led to a prudent attitude toward the North Korean problem, and resulted in some judicious counterterrorism initiatives.40 In any circumstance, however, the American approach relies on the desire to be free to act as they please and not to be bound by that which they impose on others.

B. Europe’s Double Bind The European Union, as it is defined today as well as its potential future areas, finds itself in a somewhat cruel situation. Distrust in international relations, a return to the use of force, scepticism regarding institutional and multilateral approaches, and criticism of the efficiency of the disarmament instruments all run directly counter to the EU—to the values it claims to represent, to the methods it advocates and even to the core principles behind the entire European construction effort. After all, within its boundaries it has 37

See, eg, Resolution 1373 and n 33 above. Ottawa Convention, 18 September 1997. 39 Facing the bad faith of Iran regarding inspections and risking a violation of the NPT, the European countries were hesitant about taking the matter before the Security Council, an idea ardently supported by the United States. 40 Especially with regard to the enforcement of air transportation security. 38

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been able to achieve a structured peace between its members, and it relies on political collegiality and respect for a particularly developed specific European law. It is true that the European Union never could be a straightforward model for other regions, particularly with regard to security along its borders, especially in the Balkans. While the Union does aspire to universalise its core principles, in its attempts to do so it finds itself in conflict with its primary, perhaps even only ally—the United States—with which it feels a degree of solidarity, even if the degree of solidarity differs depending on the Member State. This solidarity is even more essential to its own security, as the European Union has been unable to procure its own security guarantee and does not seem likely to do so in the near future. In the face of increasing scepticism regarding the existing instruments of disarmament and the whole enterprise in general, European countries are therefore stuck between a rock and a hard place, objectively as well as subjectively. Objectively speaking, the European Union does not have the legal competence in the field of disarmament; nor does it have a unified voice on the subject. Moreover, the European Union can hardly present a viable alternative solution to its preventive and conciliatory approach in international relations, as it considers the use of force as only a last resort—and with the condition that it is accepted internationally. Furthermore, it would not have the means to back up a strategy equivalent to the US strategy, either in terms of armaments, detection and surveillance, or in terms of its ability to project force internationally. Since it cannot be an efficient partner of the United States in this domain, it should accept a secondary role with limited influence, a simple extension of US dominance. This approach was taken by those European countries that supported the United States in the Iraq crisis. Had Europe possessed the means to back up a different strategy, it would have run up against American opposition to any rival suspected of organising an alternative to its position. In an almost double binding logic, Europe is encouraged by the United States to develop its military capacity but effectively forbidden from using it independently. The dynamics of the European construction project, namely the European Union, have come to dominate those institutions that might challenge it in Europe, including the European Free Trade Association (EFTA) and the European Council; and as such, the European Union has become the principal if not only driving force at the institutional level. It has not, however, been able to overcome NATO as an obstacle to EU security independence. NATO was initially conceived as a means of providing security for Western Europe in the face of the Soviet threat; subsequently it has become an obstacle to the constitution of an independent European means of defence, with the exception of those at the disposal of American will. The unenviable position of Europe vis-à-vis disarmament is also subjective, because European countries, even though they claim that shared values

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and methods constitute their identity, are not in agreement about the practice, means and objectives of a common foreign policy or security—and even less so in relation to an EU position vis-à-vis the United States. It would certainly be desirable for Europe to escape from the American obsession with defining the European Union’s place and role, although it must be admitted that the United States knows well how to place itself at the centre of strategic European debates, and Europeans find themselves internalising American problems far too often. As a matter of fact, the European Union has its own points of dispute independent of the United States, especially with regard to disarmament. The United Kingdom and France, as nuclear powers, have their own interests and positions, and they are not always identical.41 Their positions on the subject both diverge from that of other countries on the continent, particularly Northern European countries that seek total nuclear disarmament. Official EU participation in the essential disarmament instruments and the common will for efficiency in the fight against proliferation and terrorism do limit outright conflicts between EU states, but disagreement remains. In these conditions, Europe can only promote conciliatory positions, as demonstrated by its attachment to multilateralism and international institutions, especially the Security Council. The different European countries therefore favour maintaining the legacy of the disarmament enterprise, which in part leads to a defensive attitude, and they are even less inclined to accept American initiatives. This is how Europe can accept the logic of counter-proliferation—only as a measure in parallel with the standing preventive regime of non-proliferation, rather than as an alternative to it. Even in terms of conciliation, the positions of European countries often diverge. The United Kingdom, for instance, is very attached to its intermediary role between the United States and the rest of Europe. As a gobetween, it would like to see its role become pivotal, to thereby relive the glory days when the United Kingdom was dominant and the sole guarantor of international stability. Many new EU members fall in line with this position, hoping not to distance themselves from the United States. Other European countries, France and Germany for example, have sought to adopt a similar conciliatory role with the rest of the world, which could mean being even further at odds with the United States. Added to these conciliatory approaches, which often express a more open sensitivity towards other states’ interests, is a larger international security 41 This explains why France is still not a party to some treaties from the nuclear arms control period, in particular the NTBT and the Seabed Arms Control Treaty (1971), though it does respect them in practice. This attitude is partly motivated by the consideration that three countries—the United States, the USSR (Russia) and the United Kingdom—have particular responsibilities in bringing these treaties into force (a manifestation of the spirit of Yalta). And we know that France joined the principal arms control treaties only when it was certain that they would not hinder its ability to ensure an independent means of deterrence.

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conception that encompasses more than coercive, military aspects. Such a perspective is interested in the roots of international and civil violence, focusing on nation-building in an effort to prevent future as well as current conflicts. Furthermore, there is support for international criminal justice, with the hope that it contributes to the calming of tensions as much as to the enforcement of international law. Beyond the fight against violence and the reconstruction of peace, the European Union is also open to the idea of economic and social development as part and parcel of a project of stability. The European Union looks favourably upon the creation of an Economic Security Council42 that would strengthen the limited means of the UN Economic and Social Council (ECOSOC) as it stands today. The European Union supports the complementary role of NGOs in humanitarian law and development as a means of making international action more diffuse and disassociated from power dynamics. All of this supposes a bigger role for international institutions, with the United Nations at the forefront.

C. Other States Though Russia, China, Japan and India should be treated separately, other states form a motley group, the vast majority from what was once called the Third World. Today this group is even less coherent and less in control of their future than ever. Nonetheless, for various reasons, these developing countries have a consistent baseline in multilateral debates. Adopting an attitude that is similar to the American one with regard to international relations without actually imitating it, they tend to focus narrowly on their own national interests. Russia and China focus more or less on their domestic problems, and India and Japan focus on ameliorating their international status.43 In these conditions, none of these countries offers an alternative vision of the international order, and for different reasons, they are not in the position to make anything other than declaratory positions vis-à-vis disarmament. Outside of these four states, the disparate group of other countries, which are distributed over vast geographic, geo-cultural and geo-strategic regions, do not realistically correspond to any real form of organisation, especially in terms of security—with a few embryonic exceptions. Without trying to justify a clash-of-civilisations theory, we can note that these countries are often seen as potential sources of danger or as a global soft underbelly, caught between the worrying extremes of failed and rogue states and posing problems to international security to which they have no solution. 42 It could certainly be said that this Council already exists in ECOSOC, and its role must simply be reconsidered. See A Dejammet, Supplément au voyage en Onusie (Paris, Fayard, 2003). 43 For Japan, this means advocating access to Permanent Membership of the Security Council; for India, it means recognition of its nuclear status.

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These countries can be generally characterised by the dichotomy between their aspirations and capacities. The postcolonial themes of seeking a new economic international order 44 and recasting international norms in a collegial and interdependent spirit, which would assure such states an automatic majority in universal organisations, are no longer on the docket. Even at the multilateral level, their relative influence has declined—the Security Council is more important than the General Assembly, the G8 more powerful than Group 77, and the World Trade Organization (WTO) is dominated by the great economic powers. In terms of security, their active role consists of contributing when needed to UN peacekeeping operations or becoming US satellites. Concerning disarmament, the 1995 Conference on the extension of the NPT marked a turning point. The adoption of an undetermined extension showed the inability of these states to influence or extract concessions from other states, whether in terms of nuclear disarmament, security guarantees or technological assistance. On the contrary, they now find themselves subjected to many complementary non-proliferation regimes based on the cooperation between states on the exportation of restricted technologies. Whether at the Disarmament Conference or at the General Assembly, they have not been able to push through their positions, and their ambitions for a 4th Extraordinary Session on disarmament continues to be stymied. Finally, there are rogue states, which are generally characterised by dictatorship, corruption, underdevelopment and hidden agendas vis-à-vis proliferation, WMD or terrorism. The fact that Iran, Sudan and North Korea are grouped together in this category proves that this classification is not based upon geographical, cultural or ideological factors. Rogue states are by definition opposed to disarmament, even if they pay it lip service from time to time. They therefore constitute one of its major obstacles and at the same time demonstrate one of the best arguments in favour of substituting counter-proliferation for consensual and preventive non-proliferation. It is equally clear that the obstacle they pose to disarmament should be countered, though it is also clear that an international strategy to overcome them has yet to be elaborated. Iraq and North Korea, though in opposite ways, highlight this difficulty. Actions taken against Iraq transformed it from a rogue to a failed state, without any clear reconstruction plans outside an indefinite occupation regime. The only result of taking a diplomatic as well as regional approach to the North Korean problem has been a hardening of the regime and its 44 We know that promotion of the New International Economic Order (NIEO), at least in the rhetoric of the United Nations and on the basis of General Assembly resolutions, dominated the 1970s. Supported by Group 77, NIEO implied a redistributive and interdependent economic and international relations order favouring developing countries, as well as a larger hand for these states in the dictate of international norms. On this matter, see M Bedjaoui, Le Nouvel Ordre économique international (Paris, Economica, 1979).

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demands. It is not unreasonable to fear that such examples encourage other states to seek such weapons and their delivery systems in order to establish themselves as nuclear states; there would consequently be no choice other than to work with them, without even going to the extreme doctrine of aggressive sanctuarisation.45 India and Pakistan are without a doubt not in this category, but their attitudes clearly tell a lot about the position they have acquired and indubitably constitute a general encouragement of proliferation. This clearly shows that the very notion of rogue states is subjective rather than consensual. Moreover, coercive disarmament, as tempting as it may appear, clearly presents only an impasse to the problem of proliferation, only scratching the surface of the problem rather than dealing with its causes. It is fair to note, however, that no alternative efficient strategy concerning disarmament has yet been conceived: counter-proliferation is still a nascent concept.46 This presents a challenge and maybe an opportunity for the Security Council—and more generally for international action to be substituted for unilateral action.

IV. Conclusion Such an analysis should not lead to pessimism but rather to the conclusion that the disarmament enterprise must be re-thought and re-legitimised within the new international security context. It is marked by increasing mistrust between states, with less controllable and more unpredictable actors, who are sometimes in even less in control of themselves, with a sudden inclination to use new methods of violence, such as the resort to armed force, and the clearly multiplied risks of all types of weapons proliferation as seen in the new forms of arms races. Security Council Resolution 1373, as well as the Council’s competences in general, is a good example of the positive innovations available, though still largely unexplored on the subject. More generally, reconstituting trust is at the same time an instrument and an objective. It assumes a global conception of international security, but also to the return of a diplomatic approach and the maintenance of a strategic dialogue at the universal, regional and local levels. 45 The doctrine of aggressive sanctuarisation entails the idea that a nuclear state is safe from foreign military coercion because of its retaliation capacity, and that it can therefore proceed with foreign aggression with impunity. Iraq and North Korea are particularly suspected to be able to adopt such an attitude, which makes the perspective of the proliferation of WMD, especially nuclear weapons, particularly destabilising. 46 As it happens, it seems to be evolving towards a larger concept, the fight against proliferation, which is associated with a set preventive mechanisms, whether legally binding or not, and with a search for new coercive mechanisms. In this spirit, the Proliferation Security Initiative (PSI), started in 2003 by the United States, aims to form ad hoc coalitions against certain forms of sensitive material transfers, especially by maritime means. It is clear that the possibility of intercepting ships on the high that the possibility of intercepting ships on the high seas would be better established if it relied on a Security Council authorisation—but such a reality would lead to an enlargement the coalitions.

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25 Non-Proliferation Initiatives and the Non-Proliferation Treaty Review: An Introduction*

I

T SEEMS APPROPRIATE to begin with a general assessment of the situation in the field of nuclear proliferation/non-proliferation as it stands after the failure of the latest Nuclear Non-Proliferation Treaty (NPT) Review Conference in 2005. This failure does not in itself create a new understanding of nuclear proliferation because it cannot be considered to represent a new departure; it is neither an improvement nor a worsening of the situation. Rather, given the collective discussions during the conference, this recent outcome highlights the current problems and ambiguities that will need to be addressed in coming years. For two reasons, the following assessment will deal with interstate relations only, leaving aside the problem of nuclear terrorism linked to criminal or terrorist circles. The first reason for our focus on interstate relations is that terrorists are in fact not likely to resort to nuclear weapons, in particular because they have more efficient means of action at their disposal. The second reason is that responses to these threats go beyond formal international agreements, including the NPT. They indeed encompass a set of domestic measures aimed at preventing and repressing terrorist activities as well as at developing international cooperation and coordination of intelligence agencies, surveillance and eventually covert actions. UN Security Council Resolution 1373 (28 September 2001) stands as both a good example and a basis for these types of policies. As a whole, the issue of nuclear proliferation should indeed be perceived from a wider perspective than simply that of the conference itself. One should look at it from the perspective of the obstacles and difficulties that multilateral instruments other than the NPT have been encountering in recent years. It appears to have become more and more difficult, not to keep in force, but to enlarge and to implement multilateral treaties without running into obstacles—the Kyoto Protocol and the Rome Statute establishing an International Criminal Court being good examples. At the same time, * Previously published in International Spectator, Rome, 2005.

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the complexities and uncertainties of the UN reform proposals are quite clear. If we look at the ongoing construction of the European Union, the difficulties of the so-called European Constitution are similarly obvious. What we are now facing may thus actually be a wider crisis, not only of multilateral instruments but also of multilateral institutions, indicating a crisis of multilateralism as a whole—of which the failure of the NPT Review Conference might not even be the alarming manifestation. Moreover, if we look more specifically at preventive multilateral regimes in the field of arms control, of which the NPT has been a cornerstone for some forty years, the same kinds of problems may be observed. It was, for instance, impossible to agree on a verification protocol for the Biological Weapons Convention; and the Comprehensive Nuclear-Test-Ban Treaty (CTBT) is not and most probably will never be properly enforced. For its part, the Disarmament Conference seems to be in a stalemate with regard to a cut-off treaty, with even the conditions for the latter’s negotiation being the subject of disagreement. Nevertheless, one need not necessarily consider the NPT exclusively in this context, as it has its own specificities and history. We could after all draw consolation from the fact that it is not the first time that there is no final document to such a conference, without the Treaty particularly endangered by this. However, even if we do consider the NPT specifically within its own context, the recent failure of the Conference does at the very least reveal the existence of doubts concerning the implementation and the efficiency of the Treaty. It shows a weakening of consensus among the state parties, as well as a certain amount of frustration and a lack of confidence between the parties. The main question seems to be: what does this mean? What is the significance of these doubts, of this lack of consensus, of this lack of confidence? One can always find technical explications to specific problems, as well as specific motives behind individual positions. But it does not seem either satisfactory or realistic to be limited to such explanations. The doubts among the states parties have deeper origins, and the answers are most probably lying beyond technical problems and individual policies. In this respect, we should consider two different hypotheses. None is optimistic, and the second one is perhaps the most pessimistic. The first and more benign hypothesis supposes that the main objective of the NPT (ie, non-proliferation of nuclear weapons) remains untouched and is still agreed upon by the parties, and the doubts concerning the Treaty relate only to its efficiency. The objective in itself thus remains valid, but the NPT and/or its associated regimes in this scenario are no longer perceived to be the best instruments with which to achieve the objective. If such is the case, we need to evaluate these doubts, their origins and their consequences. A first set of remarks will deal with this hypothesis. The second hypothesis is more malevolent: it supposes that these doubts are about the very objective of the non-proliferation nuclear weapons. The

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reasons for this could well be multiple, even conflicting. For instance, nonproliferation could be perceived as no longer useful to the security of the states parties. It could even be perceived to be dangerous, either because its current regime is seen to be too weak and flawed or because it is seen to promote the status quo regarding inequality between the haves and the have-nots. As unpleasant as such a hypothesis is, and as disturbing as some of its underlying motives may appear to be, it must be considered, and thus a second set of remarks will be devoted to it.

I. Declining Confidence and Consensus surrounding the NPT Generally speaking, we can identify four non-mutually exclusive reasons for this decline: the NPT no longer protects against proliferation; it allows the state parties to develop their nuclear capabilities just short of proliferation; coercive measures against proliferation either do not exist or do not work; and the imbalance between nuclear weapons states (NWS) and non-nuclear weapons states (NNWS) remains at best untouched and may be aggravated.

A. The NPT No Longer Protects against Proliferation It is well known that several states, whether parties or not to the NPT, are currently asserting their right to develop or are developing their own nuclear capabilities. Some of them have even reached the point of possessing nuclear weapons. For approximately the last three decades, the NPT, in spite of the fact that it was not a universal norm prohibiting the proliferation of nuclear weapons, efficiently prevented those states not party to the NPT from becoming nuclear, at least officially. It must be recalled that such a universal norm simply does not exist, as the NPT cannot be considered to form the basis of a general customary rule in international law. Indeed, after 1974 when Israel, South Africa and India were covert or unofficial NWS, they were not actually violating any international legal rule. For a long time, however, the very existence of the NPT prevented these countries from declaring nuclear weapons status. When South Africa, acknowledging its covert possession of nuclear weapons, destroyed these weapons and joined the NPT in 1991, this was seen as a great success for the international consensus on non-proliferation and for the return of this country to the virtuous circle of civilised countries. Nowadays, only Israel among the non-parties keeps a low profile, asserting that it will not be the first country to introduce nuclear weapons in the Middle East, even if everybody is convinced that this country does possess nuclear devices. But with the spectacular nuclear tests that were carried out by India and Pakistan in 1998, it is as if a kind of taboo has been broken. At least, neither India nor Pakistan were parties to the NPT, so they did not break any international rule. The picture is very different nowadays,

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when we see North Korea first, then Iran, seeking to acquire nuclear weapons, after and in spite of the failure and disaster of the attempt made by Iraq. Iraq was the first culprit to be uncovered, and its subjection to coercive disarmament after 1991 was perceived by the same token as reflecting a weakness of the NPT and, at the happy end, as representing a success for non-proliferation. It is necessary to make this distinction in the case of Iraq, because the NPT mechanisms were not by themselves able either to uncover the Iraqi efforts or to correct them. It was necessary to use the unilateral instruments of the UN Security Council and the coercive means of UN Special Commission (UNSCOM) to get rid of the Iraqi nuclear materials. And we all know that this success was not enough to persuade some states, namely the United States, the United Kingdom and those who joined the coalition in 2003 that Iraq was effectively no longer in possession of nuclear material and/or capabilities. Nevertheless, confidence in the NPT was reinforced, and the Treaty in itself was not at stake. The solution to these difficulties was to reinforce its efficiency. Its parties were keen to improve the Vienna Agency safeguards, and the indefinite extension of the NPT followed quickly in 1995 in accordance with the very rules of the Treaty. So, after the Iraqi breach, this Treaty made a comeback. However, in spite of these positive developments for the NPT, the picture changed in the following years. Nowadays, some parties to this Treaty are seeking to proliferate. And this raises a difficult question: why should the other state parties remain committed to an obligation that does not appear to be fully respected by other states, at the risk of being overcome by illicit nuclear proliferation that could leave them without serious security guarantees? We must add to this a new prospect, which has not been considered by the NPT and was not perceived at the time of its negotiation as representing a serious risk: the acquisition of nuclear weapons, devices or material by private groups, terrorists networks or even criminal rings. It would certainly be difficult for such groups to possess nuclear devices without some kind of complicity on the part of states—but to prevent such complicity, even to identify the culprits, could prove to be difficult. The Khan network story is illuminating. Whether Pakistani authorities were aware or not of the trafficking is a question that nobody, no state at least, seems keen to raise, and such caution could have political motives. It nevertheless represents another difficulty for the NPT, even if or precisely because one cannot find in the prohibitions of the NPT or in the agreements surrounding it a clear way of preventing such indirect proliferation, which is no less threatening to international security than the acquisition of nuclear weapons by states.

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B. The NPT Leaves Room for Development Just Short of Nuclear Weapons Proliferation As far as the ‘research, production and use of nuclear energy for peaceful purposes’, to quote Article IV, paragraph 1 of the NPT, is allowed for state parties, it is not necessarily wrong for a NNWS party to enrich uranium and then possess the fissile material necessary for building nuclear weapons. At the same time and more generally, it is not prohibited to control technologies and even some materials, especially if they have dual uses. In an increasing number of situations that involve the building of nuclear weapons or devices, the real problem is now no longer one of capacity but of intentions; or indeed, capacities other than those that we know of already. This has been borne out most clearly in the case of Iran, which followed the case in North Korea. Obviously, one must question the real nature of the intentions behind the production of enriched uranium, especially when the country is a huge producer of oil and does not seem to have any particular energy supply problems. But the burden of proof lies with those states raising these doubts, and such evidence is always difficult to establish. Here lies a crucial explanation of the degradation of the NPT regime, namely that it not only was based on legal obligations and on their verification but relied at its very roots on confidence—and confidence no longer seems to exist, on either the part of the NWS or the part of the NNWS. One can claim that the activity in itself, while theoretically not prohibited, comes under suspicion when it is concealed. The country under suspicion may then reply that the motives for such an accusation have nothing to do with nuclear weapons but rather relate to a climate of general political hostility towards it, and then go on to claim that its security is in fact at stake. Whatever the perceptions, in a context of mutual distrust, there is room to exploit the weaknesses of the NPT in order to prepare quietly for proliferation.

C. Coercive Measures Enforcing the NPT Are Weak It is well known that the efficiency of a preventive regime requires three cumulative conditions: first, a norm, whether legal or political, agreed upon by the interested states; second, some advantages for these states in the fulfilment of the relevant norm; third, the possibility of using persuasive but also coercive means against any violator that does not fulfil obligations. In other words, the association of carrots and sticks is the classic rationale for an appropriate cost-benefit calculation made by every state, in order to guarantee that all obligations will be respectedand thereby ensure the effectiveness and stability of international norms and regimes. What is the current situation with respect to this for the NPT? So far, coercive actions for implementing non-proliferation measures have been applied outside of the framework of the NPT, and they were

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basically decided on the general basis of the Security Council responsibilities in the field of peace and security enforcement. They were not directly linked to the implementation of the NPT. Moreover, if coercion was efficient in the case of Iraq in 1991, this was more the result of a side effect, perhaps even an unintended one, of the military intervention that had not been intended for this purpose. In 2003, the military intervention in Iraq was clearly missing the point, as the alleged nuclear capabilities or weapons simply did not exist. Maybe some collateral coercion was useful to get Libya to renounce its nuclear program, in the context of the war against Iraq. But any decision by the Security Council in favour of the threat or use of such military coercion seems unlikely by now, even with regard to North Korea or Iran. There is no doubt that the Security Council could opt for such coercive measures or actions. It would certainly be better, both from the legal point of view and for efficiency considerations, if an armed action were authorised and legitimised by an international body such as the Security Council. It would also be better if such action were applied without any kind of discrimination. The Security Council obviously has the right to decide such interventions, if it considers proliferation to be a threat to international peace and security, either following a violation of the NPT by a state party or on an objective basis for a non-party. With the Declaration of 31 January 1992 and with Resolution 1540 (28 April 2004), the Council has taken some steps in this direction, albeit cautiously, and it seems difficult to return to the kind of enforced disarmament that was used in Iraq, given the events that followed. One could consider that a coercive and an eventually armed action undertaken by a state or a coalition of states against a proliferating state would be more efficient, but aside from the lack of a firm basis in the NPT, it would also create new difficulties. First, it would have to be a real war, not a threat or even a strike against a limited target or softer, non-military measures. Otherwise, it would leave room for the resumption of undercover proliferation activities, as in the case of Iraq after the bombing of Osirak. Second, it could lead other states to rush into the acquisition of nuclear weapons in order to deter such coercive actions and in order to obtain the benefit of sanctuariation. Third, the lack of international legality of such actions would add to international insecurity and destroy the necessary confidence among states.

D. Persistent Imbalance between NWS and NNWS There was initially some balance in the asymmetrical obligations of the NPT parties. In exchange for their renunciation of nuclear weapons, there was for the NWS the prospect of better security, as long as nobody was proliferating, as NWS were supposed not to rush into an arms race and were giving to NNWS negative and positive security guarantees, which showed

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they were committed to nuclear disarmament. There was also, from the point of view of their development, the prospect of enjoying the benefits of the civil uses of nuclear energy. These hopes, thirty-five years after the entry into force of the NPT, have been dashed. For a majority of countries, it has been clear for several decades that civil nuclear energy did not deliver on its promises; NWS are not prepared to abandon their nuclear weapons, and the United States seems to be on the verge of developing new ones; nuclear weapons proliferation is taking place, nothing serious has been done about it and it could be perceived as representing a security threat for non-nuclear neighbouring states. So imbalances persist and are even aggravated by the very existence of new NWS, which remain out of the NPT. One must admit that the frustrations of the NNWS are partly legitimate. Nonetheless, some progress has been made. The security guarantees given by the NWS to the NNWS—individually, collectively and through the Security Council—have improved; nuclear tests are no longer being carried out; the reduction of nuclear weapons has been real; there is no longer a threat of nuclear war among the NWS, at least among the parties to the NPT. An initiative like the Proliferation Security Initiative (PSI) could persuade the NNWS that the NWS are serious about enforcing nonproliferation and willing to cooperate towards this objective—but at the same time the PSI is outside the NPT and may therefore cast new doubts as to the efficiency of the NPT. To conclude this first set of remarks on a provocative note, one could call into question the wisdom of the indefinite extension of the NPT ten years ago. It was at that time perceived to be a success for the Treaty. Now, one could ask whether it may not have transformed the NPT into some kind of icon, impossible to amend or adapt. It seems even more difficult to reform the NPT than the UN Charter. Accordingly, new developments are taking place outside of the Treaty: the PSI, management of the North Korean and Iranian cases, Security Council Resolution 1540, etc. And what could be the status of India, Israel and Pakistan within the Treaty? Would it not have been better, in order to keep the NPT at the centre of non-proliferation efforts, to extend it for limited periods, allowing, for instance every ten or fifteen years, for renegotiation in order to improve it, or if such improvements were not possible, to go beyond them, instead of letting it become weaker and weaker? And we know that it is always possible for a state party to withdraw from the NPT, which means that the indefinite extension is in a way a precarious one.

II. Doubts about the Objective of Non-Proliferation Despite all these shortcomings and weaknesses, the NPT has played a very positive role in preventing nuclear weapons proliferation over the past thirty

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years. It has helped to establish non-proliferation as an international norm, as an objective that has to be maintained for the sake of international security, both of NNWS and of NWS, and for the stabilisation of nuclear deterrence and arms control. Most of the loopholes and criticisms of the NPT are indeed not new: for three decades, they did not prevent the NPT from remaining the very basis of the hopes and prospects of non-proliferation. And, as we know, NWS have for the past twenty years strongly reduced the level of their nuclear armaments, and the nature of their current relations excludes any prospect of a nuclear war with one another. This is the reason why, beyond any technical criticism of the NPT and beyond the lack of confidence in its efficiency, there is something more to the current perceptions of the proliferation of nuclear weapons. It is the very objective of non-proliferation itself that is, openly or covertly, thrown into doubt. In other words, it seems that non-proliferation is in itself no longer perceived to be the main purpose. Behind this endeavour, we can see another objective, more limited and at the same time less neutral: a distinction between acceptable and unacceptable proliferation. It is quite clear that proliferators and would-be proliferators are acting more and more publicly, even claiming legitimacy. What is the underlying motive behind such claims? They are less and less security driven and more and more legitimated by national interest, national pride and the rejection of discrimination among states.

A. An Increasingly Public Proliferation Process At first, proliferators were outside the NPT and hid their possession of nuclear weapons. We still do not officially know whether Israel is a NWS. Even India, after its 1974 test, pretended its nuclear capabilities were solely for civilian purposes. We learnt publicly about South Africa only when it, for domestic rather than international reasons, announced the destruction of its nuclear weapons. To keep proliferation secret was a value for the countries involved, a way to protect their behaviour, to escape harsh criticism. The benign concept of threshold states was used to cover the reality and to avoid the question. But more recently, another approach has been adopted by India and Pakistan. While they are also outside the NPT, their nuclear status has become public knowledge without serious reaction, and in a way, they have won the diplomatic battle of legitimacy. Nowadays, we continue to follow the North Korean nuclear soap opera, which is in its fourth or fifth season, and Iran is playing the same game even more overtly. If these two countries succeed in becoming NWS, no doubt they will be accepted as such, and other states will follow. As usual in international relations, facts will overcome law, whether we like it or not. And the fact that by now the would-be proliferators are acting more and more publicly, playing cynical games with non-proliferation, illustrates the fact

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that proliferation is seen by an increasing number of states as a legitimate process.

B. An Increased Perception of Legitimate Proliferation One can identify three kinds of motives behind proliferation. The first one is related to national interests and pride. The perception is strong, even if it is a false one, that to have a say in international affairs, to be taken seriously, a state must possess nuclear weapons. This does not necessarily imply aggressive behaviour, but it does limit the pressures that can be applied on such states. In this respect the American intervention against Iraq in 2003 contributed to this vision in two ways: the United States was acting overtly not on the basis of international norms but because of national interests—so will other states that are capable of doing so. The United States was acting to prevent a state from becoming a NWS: the picture would have been different if Iraq had already been nuclear. So some states were encouraged to consider the acquisition of nuclear weapons as a safeguard against such military invasions, illustrating a proliferation risk that we have already identified. The second motive is related to the rejection of discrimination. At the regional level, the case of Israel is striking. Obviously, Israel has had for a long time and still has a specific status as an unofficial NWS. Israel is not keen to declare itself a NWS, and no one seems ready to exert efficient pressures for its nuclear disarmament, even if nuclear weapons do not seem really useful for its security. So it is difficult to persuade other countries in this region that they should permanently be denied the possibility of following the same path. A solution is the proposal, endorsed by the United Nations and by the Security Council in Resolution 687 (3 April 1991), of a Weapons of Mass Destruction Free Zone, but its prospects look remote for the moment. On a global level, why should some states be treated differently from India and Pakistan? And the fact that official NWS do not seem ready for nuclear disarmament reinforces the perception of an illegitimate discrimination among states. A third motive is the relative ease with which it is now possible to build nuclear weapons. For a long time, it was a difficult process, full of financial, technical and industrial obstacles. So beyond legal obligations, even the states that would have been in a position to consider the nuclear option had other priorities. However, proliferation is no longer the privilege of rich and developed countries, and it may be that developing ones are finding greater interest and attractiveness in nuclear weapons, which reinforces the power of the two other motives. Obviously, such steps would have an effect on NWS, who would have to reconsider their nuclear postures in accordance with the new risks or threats coming from proliferators, possibly leading to another form of arms race or to the development of new means of protection against

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nuclear strikes. Nuclear weapons would no longer remain at the margin of international security where they are by now but would return to the very centre of both the threats to international security and the deterrent postures that these weapons would impose.

III. Conclusion It is not easy to conclude, and even more difficult to do so on a positive note. The prospects highlighted in the previous developments are perhaps not likely, but one cannot exclude them, and we know that states usually consider the worst hypothesis in order to ensure their security. To avoid such consequences, the main condition is to restore confidence between states. Confidence-building measures were in the seventies a keystone of the positive process of détente between East and West. It would be interesting to develop new thinking on confidence building in the new international context. It is obvious that current US policy is not contributing to it, and it is not certain that the current Administration may even be interested in it. But in the long run, coercion cannot be a substitute for confidence. On the other hand, appeasement is not likely to be more effective and must not be confused with confidence. Confidence is basically a political problem, even if its ways and means encompass technical measures. The best route to follow might require a combination of different kinds of policies and measures. At the global level, keep the preventive regimes in force, which includes the NPT, even if amendments are called for. Reinforce these regimes by a establishing a set of internal measures to prevent proliferation. In this respect Resolution 1540 is a good example and should be reinforced. Increase the efficiency of the PSI by the participation of more states, and perhaps also its legitimacy through endorsement by the Security Council, which would provide it with an international legal basis. At the regional level, use the model of the Organization for Security and Co-operation in Europe (OSCE) for other regions, in order to have the benefit of regional forums on security and confidence among interested states. In this respect, pay specific attention to the Weapons of Mass Destruction Free Zone in the Middle East. And generally, never forget that every situation is specific and calls for specific management and solutions, even if one has to draw on the lessons of previous events. All this would need coordinated efforts, both on the part of NWS, official, public or not, and on the part of NNWS, for the sake of their own security and for that of international security as a whole.

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26 The Legality of Armed Conflict in International Law*

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N ITS BROADER context, the legality of armed conflict is often painful for internationalists, as they are confronted with the opposition between norm and practice. An initial reading would suggest that international law bans the use of force, although in practice there seems to be complete indifference to this prohibition. This is commonly touted as a good illustration of the inconsistency and futility of international law, leading some to use it as a point of derision. Viewed more closely, however, the issue is infinitely more complex, as there is a great number of international rules on the use of armed force in international relations. Generally speaking, these rules regulate more than prohibit the use of armed force. Moreover, contrary to what one might think, states do not disregard international law and loathe being branded violators: every state seeks a legal argument capable of justifying, if need be, the use of force. To be clear, we will be dealing here first and foremost with jus ad bellum—ie, instances in international relations in which there is legal recourse to armed force—and not jus in bello, or the limitations of armed force in conflicts. Jus in bello shall be hereafter designated as humanitarian law. Concerning the right to the use of armed force, several elements have to be taken into account: first, the essential rules of international law, which are today formulated in the UN Charter; next, the legal practices followed by states, based more often than not on the Charter, even though at times the Charter is interpreted very liberally; finally, the legal policy followed by the UN Security Council, which under the Charter enjoys a high degree of freedom to act. We refer to legal policy, for the Council is not a legal body: it is not founded on primarily legal considerations, although it applies a flexible legality. The International Court of Justice (ICJ) has made several pronouncements on the subject, and despite the fact that a general system of its jurisprudence cannot be derived from these rulings, Security Council resolutions prevail over any other rule of law.

* Previously published as ‘Sur la légalité internationale des conflits armés’ (2005) 24 Cités 103–18.

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Over the last few years, a general tendency, or to be more precise, the reversal of this tendency can be observed. In the twentieth century, after two World Wars, international law by and large tended increasingly to prohibit the use of armed force—the Covenant of the League of Nations, the Kellogg-Briand Pact and the UN Charter widened the scope of such prohibitions. But since the end of the East–West conflict and with a much greater sense of urgency after September 11, we are once again witnessing the justification of armed violence and the easing of legal constraints on its use. This trend, it may be added, is due primarily to the US desire to regain a quasi-unlimited right to the use of armed force. Our exploration of the matter will proceed first with an analysis of a few concrete post-Cold War situations (section I). We will then consider the need to question the rules pertaining to the use of armed force as formulated in the UN Charter (section II) and synthesise Security Council practices in the domain (section III). Finally, we will consider the development of the unilateral use of armed force (section IV).

I. Some Contemporary Examples of States Recourse to Armed Force Four post-Cold War conflicts can be highlighted: Iraq after the annexation of Kuwait in 1990–91; Kosovo in 1999; September 11 and its extension to Afghanistan in 2001; and the 2003 attack against Iraq. How is the question of legality to be dealt with in this framework? What legal issues does the use of force raise? An attempt will be made to identify them here.

A. The Conflict with Iraq (1991): Sanctioned War The occupation and annexation of Kuwait by Iraq in August 1990 led to an immediate international reaction: a Security Council declaration stating the annexation null and void; and a graded series of coercive measures— embargo, blockade and finally the authorisation to use force through Resolution 678 (30 November 1990). The authorisation was implicit: ‘Member States cooperating with the Government of Kuwait’ were authorised to use ‘all necessary means’ to obtain its liberation. Out of a sense of cultural propriety, the word ‘force’ was not used, which, however, did not stop China from abstaining. The wording suggested that the use of force was not on behalf of the United Nations—the US-led coalition troops fought under their national flags and not the UN flag. There was a large number of partners in this authorised coalition. Following the conclusion of a ceasefire with the coalition command, a new Council resolution, Resolution 687 (3 April 1991) imposed a series of restrictions on Iraq, including its coercive disarmament under international supervision. In spite of Iraqi acceptance of the Resolution, difficulties in its implementation led to a second conflict in 2003.

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At this stage, there are two issues to be considered: one has to do with law in the strict sense of the term and the other with legal policy. First the issue related to law: can the Security Council relinquish its control over the use of force and shift the onus onto states? Next, the question related to legal policy: can the Security Council do so in such a sweeping manner? The phrase ‘all necessary means’ does not seem to carry any restriction whatsoever. In reality, was it not a case of the Council abandoning its responsibilities?

B. The Kosovo Conflict (1999): A Missed Opportunity In the face of Serbian militia exactions, encouraged if not prompted by the Serbian government, against the Albanian-speaking majority in Kosovo, the Security Council, after long diplomatic negotiations for a peaceful settlement, was unable to adopt a resolution in favour of the use of armed coercion. It met with opposition, especially from Russia and China. In view of the impasse, a number of states decided, on the basis of a North Atlantic Treaty Organization (NATO) declaration, to intervene militarily in Serbia and compel it to evacuate Kosovo. However, NATO was merely a legal cover, for states acted under their national flags and individually ensured international responsibility. The intervention, we know, consisted of air raids, and there was no ground action before the ceasefire. Clearly, we are dealing here with a problem of international legality. The problem is all the more complex as no public debate preceded the intervention, no parliament authorised it and the legal justifications given by the governments concerned lacked consistency: some countries like France wanted, without any real conviction, to obtain implicit authorisation on the basis of previous Resolutions; others such as the United Kingdom made a reference, though without much justification, to humanitarian intervention. All agreed that this was an exceptional situation, one that could not be used as a precedent—and so the opportunity to define a doctrine of international action in comparable situations was lost. Though sidelined at the start of the conflict—unlike during the earlier Iraq conflict—the Security Council regained legal control with Resolution 1244 (10 June 1999). The Resolution decided on an interim administration for Kosovo, which continues to be in force. A distinction was made between the civil component under the aegis of the United Nations and the military component, namely the multinational security force KFOR, which, though not dependent on the United Nations, was mandated by the Security Council—it consists mainly though not exclusively of NATO countries. KFOR can use force, especially to assist the previously established International Criminal Tribunal for the former Yugoslavia. The relationship between these two components is defined by agreements between the respective authorities.

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The United Nations has reassumed legal responsibility, but political responsibility continues to elude it. That lies with the G8, which initiated Resolution 1244; with the European Union, which has played an active role in the civil component; and of course with NATO.

C. September 11 and Armed Intervention against Afghanistan (2001): Exploiting the Situation The Security Council made a brief but decisive appearance in the case of September 11 and its aftermath. With the adoption of Resolution 1368 soon after the initial attacks, it recognised that the United States was in a situation of legitimate self-defence. In the same vein, NATO proposed invoking Article 5 of the Washington Treaty, which provides for the collective selfdefence of the members of the Atlantic Alliance, but at this stage, the United States rejected such NATO assistance. Subsequently, the United States formed an armed coalition against Afghanistan, for which it provided the essential components. The Taliban regime was accused of serving as a terrorist training camp, of giving terrorists a safe haven while refusing to hand over the presumed authors of the September 11 attack. The United States and its allies thus placed themselves within the framework of Resolution 1368, since, in keeping with the UN Charter, they reported all military action to the Council. This was then a case of self-defence, recognised as such by the Security Council, and the operations were carried out under its aegis though not under its control. In the aftermath of September 11, the role of the Council expanded. On 28 September 2001 it adopted Resolution 1373 in the civilian realm, calling upon all states to take national measures to prevent terrorism and fight against terrorist networks; these were to be reported to the Council and closely monitored. In the case of Afghanistan after the military intervention, the Council did play a role in the restoration of security and the political reconstruction of the country, but it was nowhere near on the scale as in Kosovo. Essentially, things happened outside the United Nations. Concerning the use of force, the main problem arose from the fact that the Security Council recognised a situation of self-defence in the wake of an attack not perpetrated by a state but by private terrorist groups. In doing so, it authorised military action against a state in advance of the occurrence of said military action, which may seem asymmetrical. This aroused the indignation of some jurists, who consider that under the UN Charter, selfdefence can only be invoked in case of armed aggression by a state, which was not the case. We will deal with this question later.

D. The Invasion and Occupation of Iraq (2003): Manifest Irregularity The invasion and occupation of Iraq continue to dominate international relations, creating a new climate of distrust among states, with no settlement

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in sight. Let us recall: after the failure, or to be more precise, the American and British perceived failure of the Iraqi mechanisms for the disarmament of weapons of mass destruction, great pressure was exerted on Iraq to provide incontrovertible proof of the absence of such weapons on its territory. There onwards, several contradictory hypotheses were put forward, and the Security Council appeared divided. The United States and those supporting it held that Iraq had cheated since the very beginning in 1991 and had never given up banned weapons. These countries were of the view that as long as Saddam Hussein’s regime remained in power there would always be a threat, and so it had to be overthrown, using force if need be. Other countries, especially France, felt proof of major violations of Resolution 687 had to be furnished beforehand, and in order to do so renewed inspections had to be carried out on the spot. It is in this context that Resolution 1441 (8 November 2002) came about, leading to the resumption of inspections and the toughening of sanctions. This highly ambiguous text was adopted unanimously. The United States saw it as a precondition for the rapid movement to the use of force, as cheating by Iraq would soon be uncovered. For others it was viewed as a substitute for the use of force, as either it would be proved that Iraq did not possess banned weapons of mass destruction, or they would be identified and destroyed and the threat thereby eliminated. In any event, these states maintained that the use of force required a new resolution specifically authorising such use of force. What followed is well known. The inspections began, but no weapons were found. On the basis of their own information, the United States and a few countries, including the United Kingdom, decided to hasten the process. As such, they tried to push through a second resolution; as they failed to get the required majority in the Security Council, they carried on regardless, issuing an ultimatum to Iraq and then invading it, resulting in the collapse of the Iraqi army and regime. Unlike Kosovo, the invasion was preceded by a lengthy debate within the Council that heard all the states that wished to go before it. The debate received wide coverage in the media; public opinion was mobilised, and more often than not it, was against the war. It must be emphasised that the successive justifications given by the parties involved were vague and kept changing: first, it was the weapons of massive destruction; then the supposed links of the Iraqi regime with terrorist networks; and finally the inherent danger of a dictatorial and bloody regime that had to be dislodged. The inconsistency of the American position should also be highlighted. Had the links with terrorists been so obvious, the United States could have based itself on Resolution 1368 and self-defence to act immediately and directly. It did not do so, signifying that the Americans themselves were not convinced of their own argument. However, the United Nations did enter the picture again to a certain extent, especially with the adoption of Resolutions 1483 and 1546. First, it

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recognised the authority of the occupying forces in Iraq and then the devolution of power to a provisional Iraqi government. But the UN role ended abruptly with the attack on the Special Representative of the SecretaryGeneral, Mr Sergio Vieira de Mello. By subsequently declaring that the war was illegal, the Secretary-General showed that the debate remained open. It is all the more so as the situation on the ground remains extremely difficult, the scale of violence has increased rather than decreased, the states opposed to the war have not changed their position and international society is as deeply divided as ever on the subject. It is all the more so because it was in this context that the Bush doctrine of pre-emptive strikes was formulated, a source of concern for many states. These are the essential facts necessary to form an analysis of the issues. The problems can be viewed in relation to three fundamental questions. Is there a tendency in recent state practice to disregard the rules of international law? Correlatively, is the Security Council being divested of its powers? And finally, will the long-term consequences of such actions lead to a preference for unilateral armed action, thereby wiping out all the progress made by international law in this regard?

II. The Rules on the Use of Armed Force: Forgotten or Evolving? The rules on the use of armed force are laid down in the UN Charter, mainly in Articles 2§4 and 51.

A. Articles 2§4 and 51: The Lack of a General Ban Preconceived notions of Article 2§4 do not correspond to the text of the Charter, as the Article actually entails a very restrictive conception of the use of force: All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the purposes of the United Nations.

Thus, there are two specific restrictions on the use of force and one general restriction. Article 51 deals with self-defence in case of armed aggression: Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.

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Self-defence is often put forth as the exception to the ban on the use of force. This is false on three counts. First, if self-defence were an exception, it would be an exception to the entire Charter and not just to the ban on the use of force. Second, self-defence is more a consequence of the ban than an exception. It has been provided for precisely to the extent the use of force is banned—there can be no self-defence against the lawful use of force. If, for example, the Security Council authorises the use of force against a state, the latter is not in a state of self-defence. Finally, far from contradicting Article 2§4, Article 51 rather guarantees its compliance. A state that violates Article 2§4 knows it is laying itself open to individual or collective self-defence, and therefore aggression serves no purpose. On the basis of these general observations, three possible scenarios can be distinguished.

B. Illegal Uses of Armed Force as Defined in the Charter Illegal uses of armed force concern first and foremost the threat or use of force in the arena of international relations—but this must be understood in the widest sense of the term. Thus any massive violation of humanitarian law, even if solely at the domestic level, calls into question international rules. This, however, is a contentious subject. Russia, for instance, sees the Chechnya problem as a purely domestic one, whereas others view it as one of international relations. The illicit use of force, however, is more than simple aggression, and in principle, armed reprisals are banned unless in self-defence.

C. Lawful Uses Putting aside for a moment the uses of force agreed upon or authorised by the Security Council, which have international legality in principle, instances of explicit self-defence remain. Since the Charter came into being, self-defence has been the major legal tool of the war practices of states when seeking to justify their use of force. In principle, self-defence must only be in case of an armed aggression— though if every state could freely describe the conduct of another state as armed aggression, it is not difficult to imagine how far the argument of selfdefence could be stretched. On this ground, self-defence can be preventive—but it must be in response to an imminent aggression, the execution of which must have begun, or an immediate threat—for instance, an unusual massing of armed forces on the border in a bellicose context, as Israel faced during the Six-Day War in 1967. Self-defence must always be proportionate to the threat or attack. Since such proportionality is always difficult to measure, there can be no pre-established criteria. It can even extend, if one goes by the ICJ and its advisory opinion of 8 July 1996 on the legality of the use of nuclear weapons, to not excluding their use when the very survival of a state is at stake, even though the use of nuclear

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weapons is a priori contrary to the principles of humanitarian law. On the other hand, self-defence cannot justify permanent measures. For example, while one may be able to justify the occupation of a territory, such occupation cannot be permanent and must not result in annexation— thus Israel cannot use the conditions that triggered off the Six-Day War as a reason to annex the whole or a part of the Palestinian territories it occupies. One of the questions raised by some jurists in respect to September 11 and Afghanistan relates to the origin of aggression. It has been held at times that Resolution 1368, which recognised the United States to be in a situation of self-defence, does not conform to the UN Charter. The Charter, it is argued, applies only to aggression against a state perpetrated by another state. Therefore, self-defence would of necessity have to be placed within an interstate framework. But one only has to read the Charter to note the contrary. Article 51 does not by any means stipulate that aggression be perpetrated by a state alone. It is enough that it can be described as such— which is what Resolution 1368 does, though implicitly. The Resolution thus clarifies the law of self-defence but does not change it, as in the case of other points—we will come back to this later.

D. Problematic Uses Based on practice, two questions arise on the subject. First, the question of the use of force by non-state entities. Article 2§4 does not a priori apply to them. What is more, in the context of decolonisation and under the pressure of the General Assembly, dominated as it was by nonaligned countries, the struggle for independence by colonised peoples was considered, on the one hand, to have an international rather than domestic character and, on the other, to be legal. In fact, oppression by a colonial power was treated as kind of continuous aggression, justifying the right of self-defence of the dominated people. The problem of terrorism, which could get implicitly justified on this basis, was not raised at the time. This reasoning continued until the early nineties, especially in relation to Palestine. It began to change with attacks on civil aircraft attributed to Libya. We had to wait until 1992 and the breaking up of the socialist camp and the USSR for a condemnation of terrorism by the Security Council—a condemnation that became progressively harsher even before September 11. Henceforth, terrorism, whatever its motives, has been considered a threat to international peace and security and thus contrary to the Charter. The Council reaffirmed the need to combat this threat by all means (Resolutions 1373 and 1540 (28 April 2004)). Faced with the Chechen problem, Russia is one of the most exacting states on this point. It is true that we are defining here—as in the case of the use of nuclear weapons—jus ad bellum and jus in bello.

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Next, there is the question of intervention for humanity or humanitarian intervention, already mentioned in respect to Kosovo. The idea is that when massive violations of humanitarian law, such as a systematic massacre or genocide, are perpetrated by a state on its own people or when the state is unable to control such crimes—the example of Darfour comes to mind— other states should have the right of coercive intervention to put an end to the violence. This would mean going much beyond ‘humanitarian interference’, which falls within the province of aid to victims, based on voluntary work carried out by civilian bodies such as NGOs and international agencies. Many countries are opposed to the recognition of humanitarian intervention, as they fear this would be tantamount to giving great powers a right of intervention that would only be used against weaker countries. The report of the Evans–Sahnoun Commission submitted to the United Nations in 2000, entitled The Responsibility to Protect, came to two somewhat contradictory conclusions. On the one hand, it said it was the responsibility of the international community to protect victims and to take necessary measures to this end; on the other hand, it stated that states should not use armed force while exercising such responsibility without the mandate of the United Nations. However, if there is a UN mandate, the concept of humanitarian intervention becomes superfluous, as the action would be within the normal jurisdiction of the Security Council, as we will see in the following section. Humanitarian intervention is only meaningful when carried out in an emergency by states acting alone or in a coalition. All that the Evans–Sahnoun Report concedes is recourse to the Acheson Resolution, or Uniting for Peace Resolution (3 November 1950)—in other words, substituting the normal authorisation of the Security Council with that of the General Assembly. This apparent opening is illusory, for the majority of the states in the General Assembly reject the very concept of humanitarian intervention. The same holds true for the suggestion that the permanent members of the Security Council give up their right of veto in similar situations—the veto cannot be portioned off, and it is difficult to imagine that a state currently enjoying this right will agree to relinquish it. If it did so, how could one justify the maintenance of the veto for the other states? In truth, humanitarian intervention by states can be founded on the current rules of international law. Indeed, a careful reading of Article 2§4 of the UN Charter shows that it contains nothing to the contrary, and humanitarian intervention does not contravene any of its prescriptions—it violates neither the territorial integrity nor the political independence of states and is entirely in keeping with the purposes of the Charter. Critics raise the issue of the ‘primary responsibility’ of the Council for the maintenance of peace and security, but primary responsibility does not mean exclusive responsibility, so there is room for a subsidiary jurisdiction of the states if the Council cannot fulfil its responsibilities. Basically, the situation is the same as that of

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self-defence, which may be used in an emergency without the authorisation of the Security Council. The difference is simply that whereas Article 51 explicitly provides for self-defence, humanitarian intervention results implicitly from the absence of its prohibition in Article 2§4—and in this respect, all that is not prohibited is sanctioned because states are sovereign. It is thus regrettable that the Kosovo case was not used to work out a common doctrine of humanitarian intervention for intervening states. It may have provided a more effective legitimisation of a collective intervention against Iraq. Undoubtedly, this kind of intervention must fulfil certain conditions. The massive violations of humanitarian law must be patent and objectively recorded by independent bodies. The intervention should not be discriminatory and should be in relation to the power of the state against which it is directed. Humanitarian intervention is certainly not a panacea or a wholly satisfactory mechanism, but it can at least help remedy scandalous situations that rightly cause public alarm—and it can do so without in any way jeopardising international security.

III. The Security Council: Divestment or Strong Comeback? Council reform will not be discussed here as we will limit ourselves to the Council’s functional aspects, especially those related to the use of armed force. Has it become irrelevant, or does it continue to play a central role? Contrary to superficial impressions, the role of the Council has expanded greatly since the end of the Cold War, in spite of the many vicissitudes it has experienced. Indeed, it should not be forgotten that for close to forty years it remained paralysed, unable to prevent or control the use of international force. We only have to recall the intervention in the Suez (1956), Hungary (1956), Czechoslovakia (1968) and Afghanistan (1979), not to mention the Vietnam War (1964–72), the invasion of Grenada (1983), the Falklands (1983), the Iraq–Iran War (1980–88), the state of Israel, which seems to be in a state of permanent illegality, and several multiple unilateral actions of lesser consequence. The absence of the Council in all of these cases went unnoticed, whereas today Kosovo and Iraq arouse strong reactions. From this point of view, the ending of the systematic East–West opposition has strengthened not weakened the role of the Council. Yet what is its role with respect to the use of force? It can be summarised in a few propositions.

A. The Council Does Not Use Armed Force Directly In theory, the Security Council may use armed force directly under the Charter. But since at least the Korean War, we know it is impossible for the Council to have its own force under the Military Staff Committee provided for in the Charter. It seems futile to try and remedy this structural infirmity for which there are several reasons, both technical and political. Generally

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speaking, the United Nations symbolises a culture of peace, and the loathing to see warlike actions under the UN flag has increased rather than decreased.

B. The Council Can Authorise the Use of Armed Force by Member States An older precedent could be cited, that of Rhodesia in 1967, but a more important one is Resolution 678 authorising the use force against Iraq after the annexation of Kuwait. The military operations at the time were carried out under the responsibility and flag of the participating states. More often than not, the term ‘use of force’ was avoided out of a sense of propriety. Instead, most talk was of ‘all necessary means’ or similar expressions. The legality of similar authorisations has been questioned at times but is by and large accepted by states.

C. Even if Vaguely Worded, the Authorisation Cannot Be Implied The requirement of a specific resolution authorising armed force, even if it uses veiled terms, means that the existence of a resolution imposing sanctions on a given state is not enough for other states to use armed force to ensure its compliance. The problem was raised, for example, with reference to Kosovo in 1999 and Iraq in 2003. The same holds true for the supposed resurrection of Resolution 678 (29 November 1990) in the context of Iraq: the American and British alliance maintained it recognised the indefinite right to the use to force if Iraq did not respect subsequent resolutions, especially Resolution 687. In reality, Resolution 678 concerned the liberation of Kuwait and nothing more. It could thus not be invoked for the bombing that took place between 1991 and 2003, and even less so for the invasion of Iraq in 2003.

D. The Council Can Recognise a Situation of Self-Defence The Council recognised a situation of self-defence, as we have seen, with Resolution 1368 (12 September 2001), implicitly authorising the use of force by the aggressed state and those that work towards its defence. But the Council continued to remain seized of the matter, as was the case when it authorised a coalition to act—a situation encountered with Resolution 678. Under Article 51 of the Charter, all measures taken by states in situations of self-defence must be reported to the Council, which has reinforced powers, as it can ‘take such action as it deems necessary in order to maintain or restore international peace and security’. It thus exercises a real discretionary power, the scope of which is theoretically very wide, as illustrated by Resolution 1373, and imposes on states a series of restrictions and actions affecting their domestic legislation.

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E. The Council Can Recognise the Right to Use Force of Multinational Security Forces and Even of Occupying Forces Multinational security forces and occupying forces act under their own authority and responsibility—as was the case of KFOR in Kosovo and the occupying forces in Iraq after 2003. The Council can, however, limit this right—which was more restrictive for KFOR than for the coalition forces in Iraq, which were subject to only the conventional law of war and humanitarian law. The same is true for the Palestinian territories, the Council condemning at times ‘the excessive use of force’ by Israel.

IV. Conclusion: The Unilateral Use of Armed Force and Its Limits We have already discussed various instances of well-established prior practice. The existence of prohibitive rules in itself does not have a dissuasive effect, and the mechanisms of the Council have not always been adequate, to say the least, to ensure compliance with the limitations on the use of armed force. However, for a long time, warring states sought to justify their actions on the basis of the Charter, whether through legitimate self-defence or any other ground. It was a classic case of the devil quoting scripture for his own ends. The novel feature of the American theory of pre-emptive war is that a state can, in the name of its security interests, openly cut itself off from the Charter on the pretext that it is obsolete. This attitude is not confined to the George W Bush administration. The signs were already visible under the previous presidency, Kosovo being a case in point. There are some American academics who explain that the legality of the UN Charter has been eroded by the customary use of force by states acting individually. The obvious risk is that other states use this doctrine as a justification to act in a similar fashion: already Russia is making it clear it will fight terrorism wherever it exists by all means, while China does not exclude in theory the use of armed force to put an end to the situation in Taiwan. However, Iraq may prove to be the burial ground of such doctrines. What emerges is this: those who engage in private war without any legal basis end up considerably weakened. This perception has been strengthened by the growing isolation of the members of the occupying coalition and the doubts that have assailed some of them. It also emerges that the only way out of such a situation is to go back to the Security Council. The world of tomorrow is not going to be any less violent than the world of today, September 11 having dissipated the illusions of those who thought the fall of the Berlin Wall was the beginning of a long era of peace. But the subsequent fight against terrorism and the proliferation of weapons of mass destruction show that more than ever before, international society needs multilateral institutions as much as common values and rules.

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27 Legal Aspects of the Intervention of NATO Member States in Kosovo*

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O START WITH, we should note the quandary in which jurists find themselves. There are several causes for such a predicament: first the outcry aroused by the Kosovo intervention to a large extent dominated legal concerns and thus relegated them to the background; second, this affair raised and continues to raise a multiplicity of tangled legal questions. As for the external distraction that covered and perhaps masked the questions that jurists could have had, three aspects of the phenomenon will be noted here, which have in common the fact that they diverted attention from a strictly legal analysis. The first concerns the repeated references to the legitimacy of the intervention, the concept of legitimate force or, in other words, the concept of just war. These are formidable terms for jurists, precisely because they stand on grounds seemingly close to law but in reality outside of it. The recourse to legitimacy always in fact expresses a crisis, a questioning and an attempt at bypassing existing law, which may be considered inappropriate for the situation. Legitimacy seems always to teach law something, to remind it of the higher values to which it is supposed to subscribe but which, for this same reason, are not legal. Legitimacy is a gentle monster that devours law while caressing it. The second aspect concerns manipulation of the law via the media by public authorities, to the point that it was ‘instrumentalised’. This allowed public authorities to justify by a noble cause or by sacred principles the eschewal of elementary legal and democratic procedures, such as the consultation of Parliament before any recourse to force or even parliamentary authorisation for events leading up to acts of war. Law—the ‘Law’—to which was constantly referred during the period of the Kosovo affair was not a positive, modest, trivial and obstinate law but rather the ‘Law’ of values, which one calls upon unanimously to one’s advantage in all conflicts whenever they have to be justified by public opinion. It was a law of propaganda—governments prefer to say ‘education’, as if people were a bunch * Previously published as ‘Aspects juridiques de l’intervention de pays membres de l’OTAN au Kosovo’ (1999) 12 Défense nationale 44–62.

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of children, and marvel at the response that the opinion polls send back to them—but it was not the law of lawyers, experts or judges, even less that of citizens. Under these conditions, its evocation refers merely to emotion and not to debate. The third aspect entailes frequent recourse to the notion of ethics, insofar as ethical considerations were put forward in support of the Kosovo intervention, as either a substitute for or a supplement to legal considerations. In fact, even if some consider that ethics will be the law of the twentyfirst century, the former can hardly be confused with the latter. Ethics are more closely linked with morality, although they are no longer identified with it. Morality is an a priori knowledge of good and bad, and it has an absolute character, in principle independent of circumstances. Ethics determines rules of behaviour. They belong to the realm of action, not of knowledge; and action in complex circumstances is precisely when conflicts of moral norms can occur: it is in some way the right conduct in the face of contradictory norms, which are not necessarily nor even ordinarily juridical norms. Here too, the reference to ethics during the controversies surrounding Kosovo obscured the perception of the exigencies and constraints of juridical analysis. The confusion of jurists is due to not only the diversity of juridical problems raised but also the way they collide with one another. The most immediately perceptible among these juridical problems include: the legality of military action vis-à-vis international law; the reasons behind NATO involvement; the means or methods of combat; the recourse to international jurisdictions such as the International Court of Justice (ICJ) and the International Criminal Tribunal for the Former Yugoslavia (ICTY); and the issue of refugees, along with the rights and obligations of neighbouring countries. One must not forget either the modalities of looking for a peaceful way out of the military intervention in Kosovo and more broadly, the conditions for the involvement—or non-involvement—of the United Nations, from their initial absence to their final awakening. However, jurists are on more familiar and more solid grounds in this respect because they are accustomed to disentangling complexities, to identifying and classifying the different legal questions brought about by complex situations. Our remarks in this case ought to be focused on the main issues. These are on the one hand the international legality of the recourse to force against the Yugoslav Republic by the member states of NATO, or jus ad bellum; on the other hand, the methods and means of combat that they used, or the question of jus in bello. The task of ascertaining the main points of these issues fell to the ICJ when the Yugoslav Republic appealed to the Court regarding the legality of the intervention. The Court declared itself ‘deeply concerned by the use of force in Yugoslavia’ and added that ‘in the present circumstances, this use brings up very serious problems of international law’ (Orders of 2 June 1999). Clearly, the question then is to determine if the

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behaviour of the NATO Member States was in accordance with the pertinent rules of international law. There are nonetheless several ways of viewing the behaviour of the NATO Member States. In substance, one can situate behaviour in relation to a legal norm in three different ways. One can first analyse its conformity to prevailing norms and qualify its regularity or irregularity: this is in a way what the norms show us about the behaviour. Next, one can search in the behaviour itself signs that would indicate a change of norms or, more precisely, a new emphasis, the highlighting of heretofore unnoticed aspects: this is in a way what behaviour shows us about the norms. In this regard, certain behaviour may acquire an exemplary value. One may finally recognise in the circumstances that surround this behaviour an extraordinary, exceptional nature, in such a way that singular behaviour, seemingly irregular, may justify itself by its very exception—non-reproducible singularity— exception that must be absorbed at the earliest on behalf of the norm that has, if otherwise justified, at least endured the exception. At this point of the argument one must admit that unease takes the place of awkwardness. More precisely, a jurist may feel that he is in a Cornelian situation. If he were a poet, he would take Rodrigue’s position, that of the Stanzas. The bottom line in fact is that in the first analysis, the action of the NATO Member States appears quite irregular, so that one does not see how to justify it in the eyes of international law, and equally, one sees many arguments in favour of its irregularity. It is nonetheless difficult to challenge the principle, even beyond the ethical reasons that one may share without difficulty. Could one not then, with the right arguments, justify the exemplarity of the action undertaken by a more detailed analysis of the law? In practice one must observe that the undertaking was not initiated, as would have been possible, by the public authorities whose responsibility it was. One may therefore only make do with the exception on the normally non-renewable nature of an operation with a problematic legality. Nevertheless, one has to choose to come out of the irregularity from the bottom, when one could very well do it from the top, by formulating the juridical doctrine of humanitarian intervention.

I. Apparent Irregularity A lengthy demonstration on the subject of irregularity is not necessary, because elements of the irregularity of the intervention in the light of international law are quite visible at first glance. First and above all, this concerns the conditions of the recourse to force against the Yugoslav Republic by the NATO Member countries. This is also the case, even if the irregularity is less immediately blatant, with regard to the means of combat used, insofar as they pertain to the laws of armed conflict. As for the recourse to force, we do not perceive any formal juridical basis that could justify this. On the contrary, it seems to go directly against one

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of the texts unanimously considered to be one of the most important in contemporary international law, Article 2§4 of the UN Charter, by which all the involved countries are linked and which declares: The members of the Organisation shall refrain in their international relations from the threat or the use of force, either against the territorial integrity or the political independence of any state, or in any other way inconsistent with the purposes of the United Nations.

What is more, the Security Council did not adopt a resolution, which would have entitled the concerned states to employ force, as it did in aid of the coalitions and, for example, in the Gulf War in 1990. No provision of the original or derived law of the United Nations can therefore justify the action of the NATO Member countries. Nor can they justify themselves by the Atlantic Pact. Article 5 of the NATO Charter provides admittedly the possibility of a coordinated or collected action in the event of an armed aggression against one of its members, but clearly this is not so in this case. In actuality, no Member made such a claim, as they mentioned instead missions outside Article 5. Justifying themselves on this would moreover have led to placing oneself in the last analysis within the framework of the Charter, since Article 5 is an implementation of its Article 51 concerning individual and collective self-defence, and the Atlantic Pact declares itself subordinate to the Charter. Subsequent possible developments of the Pact are in this regard without consequence on the law that the Members have at their disposal to resort to force: one could not extend and modify more broadly the Charter by an external treaty, to the extent that the Charter itself provides that the obligations that it involves prevail over those ‘of any other international accord’ (Article 103 of the Charter). What is more, at the legal level, one can very well dispute that it was a question of an action of NATO as an organisation, as a legal entity external to its Member States. In reality, it was the action of a group of states, each of which acted legally on its own behalf and under its own responsibility. They were able, in the operational and military domains, to coordinate their actions and place them under a single command, but this did not undermine their direct individual involvement, without their taking shelter legally behind the corporate veil of an organisation such that their specific role would be diminished and somewhat diluted. Incidentally, the aircrafts and ships involved kept their national registrations and flags: it was the states that fought, not an integrated multinational army. The Yugoslav Republic was thus able to submit to the ICJ petitions directed individually against the states responsible for the armed intervention without their considering that they could take cover behind the particular responsibility of NATO in order to distance themselves from responsibility. Now, as for the means of combat, we know that these are in principle subject to the law of war, laws of armed conflict and humanitarian law in

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its contemporary form. Humanitarian law applies to all forms of hostilities, independent of the legal qualification of the recourse to force itself. Between law of armed conflicts and humanitarian law, one could certainly refine the analysis with regard to the choice of terms, as with the precise definition of the applicable rules. Nevertheless the ICJ tends to see here a single body of rules, whatever be their origin—Hague Conventions, the Geneva Conventions, other possible instruments. One of their essential inspirations consists of distinguishing between combatants and non-combatants, who enjoy special protection, and between military targets and civil installations, which must be spared as far as possible. Could we say that this was the case with the conduct of the military operations against the Yugoslav Republic? It is, at the very least, doubtful. The consequences of the systematic and exclusive recourse to high-altitude aerial bombings—the significant number of civilian victims, the choice of targets the military significance of which was quite uncertain, even the ‘errors’ committed in the identification of targets (eg, the untoward bombing of the Chinese embassy in Belgrade) and the insignificant quantity of adverse military material destroyed—raise delicate questions. We will dismiss justifications based on the necessity of breaking the spirit of defence of the adversary; otherwise, why not go so far as to designate women and children as targets? The ICJ seemed to express this concern when it declared in the earlier quoted Orders of 2 June 1999 that the parties ‘must act in conformity with their obligations by virtue of the United Nations Charter and other rules of International Law, including humanitarian Law’. On the other hand, on these bases, it seems scarcely possible to dispute the very principle of the exclusive recourse to the aerial bombings. The choice of a strategy is not in itself a matter for jus in bello or humanitarian law. Only the effects or the consequences can be assessed, as soon as they cause useless suffering for the combatants or non-combatants, or lead to useless military destruction. As we can see, we are not on completely clear grounds here. One can always hold forth about the relative military usefulness of such and such target and consider that the ‘collateral damages’ of battles, cruel as they are, are the inevitable by-products of conflict. Outside the essential principle according to which the belligerent do not have a limitless choice for the means of combat, the precise and universally binding rules of humanitarian law relating to the progress of the actual fighting give rise to debate, which obviously does not facilitate their application. All that is left is to lead, in the name of humanitarian imperatives, a protracted bombing campaign affecting most significantly the civilian population, which at the very least raises difficult questions. Such is the case that one could prepare. A just war, a clean war, indeed a ‘perfect war’? We can immediately see the hesitations and the objections that these assertions gave rise to, at least from the point of view of international law as it is understood extempore. Some are tempted to infer from

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this that it would be proper to bring out and to formulate new concepts to understand the origin of this type of conflict and to conceive of and justify appropriate responses. Is this really necessary? If the concepts were truly indispensable, would they not emerge themselves? Would not the intellectual inventiveness that was put to work for their gestation bear fruit speedily? One could equally consider that the important thing is not to search at all costs for new ideas, which are always both the ambition and orphaned offspring of revolutionary doctrines: what is important is not to think in new ways but in the right way. In this regard it is preferable to attempt a more detailed analysis of prevailing international law, instead of sending it back in an expeditious manner to the trashcan of history. This analysis, based particularly on the UN Charter, which remains the impassable horizon of contemporary international law, could lead us to conclude that the intervention in Kosovo was in no way the negation of this but on the contrary likely to hold out an exemplary value. It can in fact illustrate a classical notion sometimes much too neglected: humanitarian intervention.

II. Possible Exemplary Nature: Humanitarian Intervention One can effectively attempt to get out of the apparent legal irregularity of the Kosovo affair by basing oneself on the notion of humanitarian intervention. What is this about? A strong action undertaken internationally by states, in isolation or in groups, to put an end to organised and systematic violations of humanitarian law on the territory of another state. Two precisions must be made in this regard. First, the term ‘doctrine’ designates an articulated legal position based on a coherent interpretation of the rules in force: it is therefore not in the least a question of demanding a change in the law in this regard or even of basing oneself on legitimacy, a sort of natural law, that would be greater than this. This is not about taking Antigone’s position of rising up in the face of the city’s laws. Next, humanitarian intervention ought not to be confused with humanitarian assistance, which has been so valued during recent years. The latter is peaceful; it is based on assistance to populations that are victims of armed conflicts or natural disasters. Humanitarian intervention is directed against an adversary; it involves the use of force and other coercive means to put a stop to massive and violent breaches of humanitarian law. It is not a matter of creating a law of humanitarian intervention for the benefit of states, but of discovering it and making it evident in positive law. Though we cannot undergo a complete analytical demonstration of this here, which would presuppose a more technical and more developed study, we can at least present the main arguments. These rely, on the one hand, on a more attentive reading of the texts and, on the other, on a practice that, even though rarely systematised and claimed as such, affirms the need for state consent of its definition. If we consider that on these bases, one can

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found a doctrine strongly leaning on positive law and practised law, it is then advisable to explain the features that such an intervention must display in order to qualify for the category of humanitarian intervention. In fact, we must observe that in the case of Kosovo this doctrine was barely asserted, if at all. This absence is regrettable, from both the legal point of view and that of the maintenance of peace and international security. It is then necessary to question why we were unable to seize the opportunity of making a model of an intervention that, when all is said and done, might very well remain exceptional. If one comes back first to the texts, several seemingly formidable obstacles must be overcome. They are, however, only initially formidable, because they diminish or even disperse when one takes a closer look, as they concern the previously cited Article 2§4 of the Charter, Security Council prerogatives concerning the recourse to force, and state sovereignty. Article 2§4 is widely understood as applying a general prohibition on the recourse to force by states in international relations. A simple precise reading of its text indicates that this argument, widespread and oft repeated as it might be, could well be excessive or perhaps even erroneous. We could in all good rigour see there more a regulation of the resort to force than a complete ban—such regulation is admittedly restrictive but not a total ban— without even bringing into play considerations external to Article 2§4, like self-defence, which is regulated by Article 51, or the scope of activities of the Security Council on the basis of Chapter VII. In all good international legal logic, anything that states have not given up remains permitted to them. In fact, humanitarian intervention is not significantly contrary to Article 2§4 because its objective is not in the least to use force against the political independence or territorial integrity of a state but to anticipate or put a stop to systematic and massive attacks on humanitarian law. As such, it is certainly not inconsistent with the purposes of the United Nations. It is not any more opposed to Article 2§4 than is self-defence—an inherent state right that is not founded by the Charter but simply regulated by it in Article 51. To this argument, one can add a positive argument. The Charter is not a pacific text; it makes provision for military instruments for the maintenance of peace and security. Its Preamble indicates in particular that ‘the use of force shall not be made except in the common interest’. It is clear that humanitarian intervention constitutes one of these hypotheses of the use of force in the common interest. It could still be argued that, even if it is true that Article 2§4 entails only a regulation and not a ban of the use of armed force, the custodian of this regulation is the Security Council, which would thus see itself endowed with a legal monopoly on the recourse to force, apart from the specific and restrictive hypothesis of self-defence. If the Council chooses then not to intervene or finds itself not in a position to do so, states ought to respect and

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follow its non-action. Here too, the objection is not decisive. The Charter does not establish for the benefit of the Council a monopoly on the recourse to armed force. It simply confers on it in Article 25 the ‘main responsibility’ of the maintenance of international peace and security—not at all an exclusive responsibility. It is true that if the Council decided to act or, on the contrary, formally refused to do so, even condemning an action that claimed to be a humanitarian intervention, its decisions would be binding on Members States, who would in this way be deprived of their right to act autonomously. Nevertheless, its sheer abstention or inability to agree—in other words, the fact that it does not exercise in practise its responsibilities— would not be able to prohibit the states’ own actions, which are admittedly subsidiary but at the same time autonomous. The competencies of states thus return to the forefront as a solution to the shortcomings of the Council. The third obstacle is that of sovereignty. Humanitarian intervention would strike a blow at the sovereignty of the states subjected to it. It would involve at the very least a limitation of sovereignty, which would no longer survive in a conditional way in the form of ‘ethical’ sovereignty, to use a fashionable term. We must admit that there exists on this point a misunderstanding between jurists and non-jurists. The former give to sovereignty an absolute sense; the term never assumed this sort of quasi-metaphysical nature in positive law, particularly in the light of international law. At this level, the sovereignty of the state means simply that it can be involved only by virtue and within the limits of its own consent—but once it has committed itself, it must abide by its international commitments, whatever their source. In other words, it is bound by the general rules of international law, and no one questions that a large part of humanitarian law pertains to this. One would not be able to oppose its sovereignty with this type of obligation. We could also envisage sovereignty as a domain of the internal affairs of a state, ‘which belong essentially to the domestic jurisdiction’ of the latter, in the sense of Article 2§7 of the Charter. This domain is protected by the principle of non-intervention. It is clear that this is not the case when humanitarian law is in play, because its violation involves questions of an international nature. Moreover, in the specific case of Kosovo, the fact that the Yugoslav Republic agreed to take part in international negotiations in the matter and had already consented to the presence of international observers on the spot indicates clearly that it did not itself consider the question as a matter concerning exclusively its domain of sovereignty. This analysis is not mere speculation. It corresponds to a creeping state practice, an old practice, if it remains intermittent and above all unqualified as such. We will, however, note that a classic article that we are inclined to rediscover today studied this as early as 1910,1 but its audience did not 1 A Rougier, ‘La Théorie de l’intervention de l’humanité’ [The theory of humanitarian intervention] (1910) Revue générale de droit international public 468–82.

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exceed a narrow circle of specialists. Moreover, we must argue here in the spirit of contemporary international law, which is dominated by the UN regulation of the recourse to force. To remain within the confines of recent practice and without entering into a detailed analysis, we can mention the Kolwezi affair; the French intervention in the former Zaire; the intervention of Tanzania in Uganda to end the Dada Idi Amin regime; or the Vietnamese intervention to eliminate the Khmer Rouge regime. One can add here the action of the United States, France and the United Kingdom in Iraq after the Gulf War to protect the Kurdish population, which went beyond the provisions of the relevant Security Council Resolution. It should be noted that these examples do not always concern the great powers and are not limited to defined regions. We notice also that these actions were not merely about protecting the nationals of the intervening states. Finally, we have to wonder what the result would have been had the concept of humanitarian intervention not been put forward, as these operations have scarcely drawn international protests and have generally not been considered as contrary to international law. As for the Kosovo affair, it admittedly drew protests from some states and prompted the Yugoslav Republic to bring legal action before the ICJ, but still it was not subjected to any condemnation before any international organisation. We know that a draft resolution condemning the intervention was even rejected at the Security Council by twelve votes to three. This rejection does not exclude the legal uneasiness raised earlier; but the disquiet over humanitarian intervention seems above all to be due to the absence of any argumentation or coherent justificatory doctrine that, beyond an uncertain legal basis, could generate fears about the consequences of an indefinite right of intervention, indeterminate in its motives and limitless in its means. That is to say, it is advisable to specify the conditions and the character that this type of intervention must meet and have, in order to merit the name of humanitarian intervention. It is in fact clear that under this name or with this type of argumentation, one can put into practise all kinds of interventions, which would in fact be genuine aggressions. For instance, would the countries of the Warsaw Pact not have presented their intervention in Czechoslovakia in 1968 as a variant of humanitarian intervention? Proletarian internationalism and the conquests of socialism could have been declared irreversible facts of humanity, and the attacks that were made on them could therefore have been condemned as unacceptable regression. Instead, would behove us to determine exact conditions for and characteristics of humanitarian intervention. We will note here the main definitive conditions and characteristics. A humanitarian intervention must be founded on specific, wide-ranging and serious attacks on humanitarian law. Let us specify that the latter must not be confused with human rights; the two concepts certainly entail a philosophical solidarity and an intellectual continuity, but they are very

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different legally. Human rights are the rights of daily life—ordinary and regular; humanitarian law is linked to exceptional circumstances, resulting essentially from conflicts and applying to, eg, massacres and genocide. Different conceptions of and legal regimes for human rights exist, and at least for the moment, a really universal notion of human rights has not been achieved; humanitarian law, on the other hand, is truly universal, and the behaviour that it prohibits is universally condemned. Moreover, human rights are based on individual rights of protection and of the actions of individuals, particularly legal ones; humanitarian law consists instead of prohibitions that weigh on states, without the victims being able to evoke them directly. Hence there has been no direct individual action before the ICTY, nor will there be before the future International Criminal Court (ICC). Humanitarian intervention is led by one or several states. It is by no means necessary that it be decided or authorised by an international organisation: it does not require an international mandate, even if the states that act do so outside of their national interest. If the Security Council decides or recommends an intervention of this type, it enters then into the general scope of its activities in the matter of the maintenance or the re-establishment of international peace or security. It is useless to qualify it legally as humanitarian intervention. It should therefore be qualified as such, in the present state of the law, only if it originates directly from states. Humanitarian intervention is discretionary, that is, a right of states but not an obligation. One obviously cannot compel a state to take such recourse, and states are not internationally liable if they do not engage in humanitarian intervention. In practice, it is necessary that a state not only has the concrete means of intervention but also an interest in acting, which cannot be limited to an abstract interest for law and the defence of humanity. This means that an intervening state must perceive a calling into question of its national interests, not to say its regional interests. Humanitarian intervention also must be adequate, to the extent that the means brought to action must be in conformity with the humanitarian objectives that constitute the intervention both quantitatively and qualitatively. The military means and the violence that ensues must not extend beyond the protection of victim populations and drift towards other targets or end up aggravating the fate of the latter. Such intervention is not an ordinary military action. It demands thought in the articulation of the legal and strategic thinking on the possible modalities of a protective action adapted to its aims and on the links between military actions, diplomatic and political actions, between civil and military means—thinking that has been incomplete until recently. For all the preceding reasons, humanitarian intervention ought finally to be justified—that is, preceded by the publication of reasons of fact and of law justifying it and by clear statements about its specific objectives. Its foundational legal and material elements having been established, the interven-

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tion will be more successfully controlled and appraised. Ideally, the exercise of self-defence as regulated in Article 51 of the UN Charter could become a model insofar as justification and the measures to be taken should be made known to the Security Council. However, the potential need for immediate action means that a preliminary counter-examination of justifications and steps, a preliminary quasi-legal debate, should not be required. State worried by the intervention ought nonetheless to be permitted to bring out in due course arguments disputing the need to intervene or even opposing it. If one now compares these conditions and characteristics with the operation of the NATO member countries in Kosovo, what can be concluded? First, concerning exemplarity alone, there was no attempt at providing a clear intellectual and doctrinal basis for the action, which would have allowed a model to be created for the future. Then on the concrete and practical level, it is clear that diverse elements in fact took away from what ought to have been a humanitarian intervention. Intellectually speaking, there was scarcely an effort to formulate and make evident a coherent and clear doctrine in the matter. The opportunity to build a precedent for this interpretation of law was thus doubtless lost. As a result, the possibility of the action becoming an effective deterrent for similar cases was also lost. Instead, public discourse played more at the emotional level than at the intellectual level, consisting of a mobilisation of indignation and the ‘demonisation’ of the enemy—classical aspects of war propaganda—while a large number of questions were buried according to the supposed requirements of military secrecy. Democratic exigency, political clarity, concerns for legal argumentation and even transparency—none were significant factors for the relevant governments, particularly the French one. Regrettably, this oversight was overlooked in the very name of the values that the action was meant to defend. The creation of international criminal jurisdictions has drawn much more concerted and widespread effort. We know, however, that these can only intervene too late to crack down on the crimes that it would have been better to anticipate. Emphasis has been more on repressive processes, the effectiveness of which is dubious, instead of reinforcing and systematising preventive steps, which are more effective and thus a logic of policing and a necessary complementary or preliminary step in all hypotheses of criminal proceedings. In practice, several questions are also raised. The first involves the ambiguity of motives. Was the goal of intervention to stop violence in Kosovo or to eliminate the Yugoslav regime? Was it to promote the eventual independence of Kosovo or to impose within it a respect for pluralism by the Yugoslav republic? Another question involves the inadequacy of the means employed, which on the one hand speeded up if not prompted the exodus of populations and on the other hand brought about civilian losses that are difficult to justify. We must once again note here the concern of the ICJ

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when it declared in the previously cited order that ‘the states, whether they accept or not the jurisdiction of the Court, remain, at all events, responsible for acts contrary to international law including humanitarian law, that would be attributable to them’. Finally, there is the question of the uncertainty of the results. Did the intervention not take part, in the immediate aftermath of the initial action, in an inverted ‘ethnic cleansing’, which rendered impossible the pluralist Kosovo that it supposedly sought to protect? Does not the established interim regime, which excludes Yugoslavia from the territory and leaves it only ‘residual sovereignty’, lead necessarily to secession? Do the results in fact not accomplish purely and simply the aims of the Kosovo Liberation Army (KLA)?

III. Probable Exception We are therefore confronted with a way out of the irregularity from the bottom, which emphasises that exceptional circumstances, which by definition are not reproducible, justify bypassing ordinary laws. In this hypothesis, there would be no need to question the standard interpretation of such laws, and the intervention would not on any account be able to act as a model for the future. Proponents of the Kosovo intervention did not go that far, of course, though a certain vagueness was sought and achieved. The military success of the operation may have contributed to the creation of a kind of precedent, such that a certain level of doctrinal ambiguity is now clearly an advantage. Nonetheless, as long as one does not clearly proclaim the intrinsic legality of the humanitarian intervention and draw consequences from it for strategic purposes, the impression prevails that the exemplary nature of the situation is merely background. Several elements contribute to this sentiment of uncertainty, even confusion. First of all, it is necessary to highlight the most general context of the use of force in the course of recent years. It appears as if some states, in particular the United States, are trying to find a unilateral right to the recourse to force. This development corresponds to some extent to a reversal of values: for decades the history of international law was marked by the concern of limiting, even eliminating the recourse to armed force in international relations, and the UN Charter is the outcome of this effort. For the past decade or two, the opposite goal seems to have been accomplished, and it has been done via the main initiator of the Charter, the United States (although various Israeli actions have been pivotal as well). The new trend is to justify—through use—military means as a response to attacks on international law, as soon as these call into question American interests and no matter whether the attacks are real or imagined. The manifestations of this phenomenon are various: the action against Iran to liberate diplomats who have been taken hostage; the bombing of Libya in reaction to the attacks instigated by that country; the bombing of

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Iraq following an attempted attack on former President George Bush, or again because of that country’s interpretation of Resolution 687 concerning its disarmament; and the bombings of Afghanistan and Sudan after the attacks on the American embassies in Africa. The justification of these actions has generally been based on self-defence but in a somewhat automatic fashion, without great concern for elaborate legal argumentation and incidentally without the actions giving rise to great debates or international legal difficulties. Everything has taken place as if the concept of countermeasures, of which the United States is a great propagator and user, extends to the use of armed force, beyond the commonly accepted legal regulation of it. In the context of this trend, the Kosovo affair nevertheless represents a qualitative leap. It was not a unilateral individual action but a collective one, carried out in an institutional framework, ie, NATO. The United States appears then to have transformed this instrument of collective defence into an instrument of collective security beyond the legal framework of the Atlantic Pact and the Charter to which it is subordinated. Doctrinal opportunism has been coupled with instrumental opportunism. Within the American logic, the Security Council remains a useful institution—so long as it is ready to act agreeably, or even merely to legitimise the actions of the UN Member States; but if it cannot or will not, in the eyes of the United States, NATO ought to be a substitute institution. This is the same logic that tried to substitute the General Assembly for the Security Council in the context of the Korean War and the Acheson Resolution (377/V 3 November 1950). The other NATO members are far from unanimous on the subject of this American attitude, and though they accepted the intervention in Kosovo, they are still far from accepting the underlying theory. The attitude of the other NATO members hence seems somewhat confused. France, for example, has seemed to be in a bit of a quandary, reaffirming on the one hand the primacy of the Security Council, while trying on the other hand— against a simple reading of the texts—to link the intervention to Council authorisation, even going so far as to seek resolutions expressing the opposite idea, finally rallying themselves around the theme of the exceptional, unique and non-reproducible nature of the action. Other NATO states that are more closely aligned to the United States seem to accept the extension of the NATO missions to collective action, as long as their geographical framework is limited; in other words, NATO should not be substituted for the Security Council outside Europe. However, a few states embarked on the path of humanitarian intervention without, apparently, providing a complete doctrine for it. The East Timor affair, arising just after the Kosovo affair, can in some respects act as a counter-trial. It admittedly gave rise to international intervention, but under radically different conditions. The United Nations was

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never kept at a distance, on the contrary being involved from the start in a process of popular consultation, which was at the root of the violence. Indonesia was never treated as an adversary but as a partner whose consent was sought; the military intervention was carried out with the permission of the Security Council, and even if it called for coercive means, these remained limited to the territory of East Timor. This operation was one of restoration and maintenance of the peace, albeit with a coercive capacity, but it did not constitute a war-like action. In both cases, the United States played a role—a spectacular and prominent one in Kosovo, a more discreet and indirect one in East Timor. The moral of this particular story is not that the Kosovo model should necessarily be rejected in principle but rather that each situation must be appraised according to its own merits and subsequently dealt with in its own specific way. As for the United Nations, one can say that it provided a minimal service in the case of Kosovo. It neither authorised nor condemned the intervention. After the military success of the intervention and the acceptance of NATO’s conditions by the Yugoslav Republic, the Security Council itself agreed to outline the consequences of the action in Resolution 1244 (10 June 1999). Contrary to certain analyses, the Resolution in no way endorsed the military operation itself. It left that aside, instead concerning itself only with managing the transition period, by establishing an international military presence and the provisional civil administration of Kosovo. The Council also did not really weigh up the political regulations. The G8 seems to have played a more important role in this regard, since Annex 1 of the Resolution makes reference to the terms of the Petersburg Declaration, which was issued by the Ministers of External Affairs of the G8 countries. In practice, the Security Council seems to have accepted the primacy of the G8’s political role, and in so doing, it has merely stamped its Declaration with an official seal. As for the other parts of the United Nations, the Secretary-General is actually the sole political authority who can express himself authentically in the name of the institution, since unlike collegiate bodies, he is not the sum or outcome of the positions of a qualified majority of Member States. In the case of Kosovo, the Secretary-General maintained an attitude of great caution, which was not necessarily unfavourable to the intervention. First of all he recognised that it was not necessary in all cases that a use of armed force be preceded by the Security Council’s permission; he then in a general way used terms that can call to mind humanitarian intervention and its justification with regard to the Charter. Meanwhile, the Yugoslav Republic appealed to the ICJ, the main legal body of the United Nations, regarding the legality of the actions of the intervening states; but, as we said earlier, it seems doubtful that the Court can examine the question in depth as its competence in the matter is disputed by the defending states, who are backed with solid arguments.

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IV. Conclusion Despite all of these misgivings regarding the actions in Kosovo, has the quandary of jurists—or even their unease—vanished? The subject is today less topical, for other questions are on the agenda, including the reconstruction of Kosovo, a suitable provisional regime, the possibility of coexistence between the Albanian and Serb communities and the future status of the territory. The questions raised here remain pertinent and significant; but their answers do not easily lead to feasible solutions, and times hardly appear favourable for grand declarations of principle. Public debate on the issue of Kosovo has consisted more of justifying the action undertaken than of giving legal explanation for it. Certainly, this action has marked a significant moment in the law in international society. It is simply a pity that the opportunity to systematise its legal bases and analyse their implications for international law passed by with only a few attempting to do so other than in a doctrinal or speculative spirit.

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28 The Kosovo Affair and International Law: Points and Counterpoints*

T

HE CONTEMPORARY PREFERENCE for analysing the Kosovo affair was from the viewpoint of what American tenets of international relations call crisis management, an expression that translates into French roughly as ‘la gestion des crises’.1 This type of analysis is dominated by an operational concern: have we done what we should have? Have we used the available means according to the intended aims? If not, what was lacking and why? What lessons can we draw from this to conceptualise the method if it was effective, to remedy its shortcomings or to correct it if it was faulty? However, if we place the matter in a juridical context, the term ‘crisis management’ is clearly not appropriate, any more than the usual UN method of employing peacekeeping operations to restore peace, even to impose peace. As a first approach to Kosovo, perhaps one could speak of coercive intervention in a situation of conflict, followed by an international enterprise of reconstruction of peace. These methods take into better account the successive, in part original, complex and composite nature of the enterprise. We can nevertheless accept an operational approach on the grounds of juridical analysis. This consists first of all in questioning the manner in which international law was used in the circumstance. It is clear that legal rules are not tents pitched for sleep or for the serene contemplation of jurists; instead they are considered by their beneficiaries as instruments that offer, depending on stages, justification, means of action or channels and procedures. In the case of Kosovo, the law was applied in diverse registers, which we will identify and disentangle in section I. But we may then in a way turn back this operational approach, by asking if the practices followed in the Kosovo affair threw light on pragmatic law, or in what way were likely to lead to its development. At first glance, they lead instead to a decon* Previoiusly published as ‘L’affaire du Kosovo: points et contrepoints’ (1999) Annuaire français de droit international 280–91. 1 See in particular the series of articles entitled ‘The Early Lessons of the Kosovo War’ published in (1999) 12 Défense Nationale 18–62; and the series of articles entitled ‘Aspects de l’intervention au Kosovo’ published in (2000) 1 Annuaire français de relations internationales 163–226.

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struction of apparently well-established facts. But as we will see in section II, international law, especially in these domains, feeds on qualified and recognised practices, in such a way that deconstruction may herald reconstruction.

I. Diverse Registers in the Use of the Law Law was very widely evoked in the Kosovo affair, particularly at the beginning of the military intervention. It was then mentioned in both a more reduced and more discreet fashion. This is because it was used in several registers, for diverse ends and for varied beneficiaries. Attempting an inventory of these registers and their beneficiaries is already a challenge, for one question conceals or foreshadows several others, and one can break them down infinitely, at the same time as the practice may at any moment give rise to something new. It is fitting thus to render to each its due—suum cuique tribuere. At the outset there are two registers in which jurists have difficulty recognising the norms to which they are accustomed and in which the conduct followed is perplexing: the media and political registers. The implementation register may be more familiar to jurists, but it confronts us in this case with particularly complex situations.

A. The Media Register The media register was widely used and exploited by interested governments to make the military engagement in Kosovo and the recourse to armed force acceptable to concerned public opinion. Otherwise, the events leading to intervention could have been perceived a priori either as a domestic matter for the Yugoslav Republic or as a question concerning the United Nations and thus a call for mechanisms the implementation of which is the responsibility of the Security Council. On this media level, the operation was quite a success,2 and it represents a demonstration of the new avatar of just war. Moralists and philosophers mobilised themselves, sometimes even regretting that military action had not come earlier or was not more vigorous. We can then bring this use of international law closer to other examples that go in the same direction and even fall within the same order, such as the mobilisation of nongovernmental organisations (NGOs) for humanitarian causes or in favour of international criminal law, with the creation of international penal jurisdictions. With Kosovo, it was simply a matter of the states accepting the responsibility for this mobilisation, even causing it for their ends, perhaps catching the NGOs by surprise. As a counterpoint, nonetheless, are the doubts expressed by some under the angle of legal analysis. These doubters initially accused official rhetoric 2 N Pélissier, ‘Information en guerre: les médias français et le conflit du Kosovo’ (2000) 1 Annuaire français de relations internationales 206–26.

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of being based on a concern for legitimacy rather than a concern for legality; however, as jurists know very well, legitimacy is a term that evokes legality, all the while calling it into question. Such doubts place themselves then as much on the jus ad bellum level as that of jus in bello: in other words, the very principle of the intervention was legally doubtful, as all means of obtaining a peaceful settlement had not been exhausted.3 Even a superficial reading of the rulings of the International Court of Justice (ICJ) in this matter confirms this point of view.4 There are also doubts about socalled ‘humanitarian missiles’, which are meant to eliminate the executioner but spare the victim, as well as regrets about the indiscriminate use of force without regard for civil losses (part of a concept of ‘collateral damage’). Such is the logic of a fire-fighter who causes more destruction that the fire that he fights—that, in the circumstances, he may even have helped to start. But as early as 1921 was written that ‘no war is just and generous, if not on abstract grounds; on the inside, if one may say, a war is never either just or generous.’5 It would be proper, nonetheless, to observe that these interrogations have scarcely impressed beyond some specialised circles.

B. The Political Register Beyond the media, there is the political register, which concerned the formation of a coalition of countries intervening under American leadership, with a multilateral cover provided by the North Atlantic Treaty Organization (NATO). The grouping together around this politico-military organisation allowed the nuances of the deep divergences between even participants regarding the foundation and objectives of the action to be relegated to the background. NATO members who participated directly or indirectly in the operation put the Alliance in front and have taken very considerable cover behind it, as if to find increased legitimacy in doing so. There again, the excellence of motives and alleged ends and purposes covered the doubts and interrogations that legal analysis inevitably raises.

3 G Andréani, ‘Force et diplomatie à propos de la guerre du Kosovo’ (2000) 1 Annuaire français de relations internationales 163–78. 4 See Order Request for the indication of provisional measures in matters relating to Licéité de l’emploi de la force ICJ (2 June 1999). In the order that concerns Yugoslavia and the United States for example, the Court points out in particular that ‘the Court is particularly preoccupied with the use of force in Yugoslavia. Whereas in the present circumstances, this use raises very serious issues of international law’ (§16); and that ‘any disputes relating to the legality of such acts (which would be contrary to international law, including humanitarian law) are required to be resolved by peaceful means, the choice of which, pursuant to Article 33 of the Charter is left to the parties’. For this we must compare it with §33, in which the Court mentions that ‘when such a dispute gives rise to a threat to the peace, breach of the peace or act of aggression, the Security council has special responsibilities under Chapter VII of the Charter.’ 5 Alain, Propos, 13 août 1921(Paris, Gallimard) 409.

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It is true that the relevant counterpoint is not of only a legal nature: on these grounds, we will emphasise that the UN Charter, to which the Atlantic Pact refers, in no way authorises military action from NATO, apart from self-defence, which would be justified only if armed aggression had occurred against one of its members. Moreover, the reasons prior authorisation from the Security Council, which appeared necessary according to the preceding Resolutions on Kosovo, was not sought are hardly legally convincing. But doubts in this regard exist also on politico-military grounds, and several questions jump to mind: did the intervention not weaken NATO rather than strengthen it? Did it not highlight its failure to adapt to actions of this nature, which differ greatly from the theories on which NATO was founded? Did the obviousness of American supremacy not accentuate the political and military nonexistence the European Union, which wants to exist precisely on this double terrain? Moreover, does the United States not use NATO as it pleases, and is it not always ready to act independently without even informing its partners while they are in principle engaged in a collective act for which the United States has the military leadership? Does what happened subsequently in Chechnya not prove that we are in fact in the presence of undisclosed (or only tacitly disclosed) politics regarding zones of influence, which might remind us of the famous Brezhnev doctrine justifying the intervention of the Warsaw Pact forces in Czechoslovakia in 1968? But for this last question, we could consider that the debate on these themes is rather outdated today. It is no longer interesting to ask if the military intervention in Kosovo weakened or strengthened international law. It is weakened because the so-called universal rules appear more than ever to be dependent on a circumstantial use and deformation at the hand of power, which moves forward under the mask of virtue—what about the Kurds, the Great Lake region of Africa and the Republic of Congo? It is strengthened because it was demonstrated that a state cannot take cover behind the vain alibi of its sovereignty to exonerate itself from basic obligations that are imposed on it by international humanitarian law, and international public opinion can be mobilised for the defence of this law. The debate is outdated because after the end of military action in Kosovo, there has basically been a return to a more classic situation that is better defined by proven legal practices: Security Council Resolution 12446 absorbed the anomaly of an intervention undertaken without its authorisation. This allowed for, or at least justified, the establishment of an international reconstruction of peace and a transition to a permanent solution for Kosovo, in conditions that do not exclude the recourse to military 6 Resolution of 10 June 1999. The text as well as other relevant documents are reproduced in Centre d’études et de recherches en droit international, ‘Conflits au Kosovo: Les textes applicables’ (1999) La Lettre du CERDI ( Université Paris 1 Panthéon-Sorbonne) 56–59.

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coercion but are inherently peaceful. What is more, the reaffirmation of the Security Council’s role has returned international law to an institutional register, which adds a new dimension to the other registers but does not diminish their importance.

C. The Institutional Register On the institutional register, the Security Council set up a sort of legal and instrumental Erector Set, consisting of three elements: the United Nations itself, which has taken on in some way responsibility for the territory of Kosovo, leaving only a residual sovereignty for the Yugoslav Republic, the essential civil prerogatives of the state being exercised through the Special Representative of the Secretary-General; NATO, which is in charge of security and provides an indefinite (on paper) military presence over the territory; and other international institutions, in particular the Organization for Security and Co-operation in Europe (OSCE) and the European Union, which largely operate on political grounds. If one wished to caricature this setup, one could say that it is a three-tier missile: the UN tier provides authority for legitimisation, a sort of spiritual authority; the second, NATO tier is an instrument of security and in fact also of the police—in other words, it provides military authority; the third tier, less explicitly delineated, provides civil administration in the form of the European Union, including a political future and the economic development of the territory.7 This last component of the Security Council setup for Kosovo is the most tenuous because it seems the United States is not without designs on this front, and it is moreover clear that the EU Member States are not in agreement on the issue. Nonetheless, the Security Council setup certainly appears to be on a more legally sound, tested and normally peaceful register, for which classical international law, confronted with less dramatic situations, is better equipped. Nevertheless, here again a counterpoint becomes apparent: the return to the Security Council leaves the preceding questions entirely pending, relegating them to the sidelines rather than resolving them; and Resolution 1244, for example, is not concerned with the military action of Member States of NATO but draws out the consequences without either approving or disapproving of them.8 Furthermore, the modalities of the missions that 7 Clause §17 of Resolution 1244 ‘congratulates itself for the work that the European Union and other international organisations accomplish in view of working out a comprehensive approach for economic development and stabilisation of the region affected by the Kosovo crisis’. 8 The Preamble of Resolution 1244 consists of the following phrases: ‘welcoming with satisfaction the general principles concerning the political solution of the Kosovo crisis adopted on 6 May, 1999 . . . and welcoming also the acceptance of the Yugoslav Republic to the principles set forth in points 1 to 9 of the document presented at Belgrade on 2 June 1999’. The term ‘crisis’ is relatively neutral: it does not evoke the deployment of armed forces against

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it establishes remain incompletely organised, including the coexistence of the communities within the territory, the reality of disarming the Kosovo Liberation Army (KLA), the applicable law, the reconstruction of a public administration system and a justice system—in brief on the entire provisional status applicable to Kosovo. This is an existential process that must be implemented through an implicitly nuanced technique, for which the responsibility is largely left to the international authorities present. Everything remains open concerning the future, the fate of Kosovo, the nature of its links with the Yugoslav Republic, the modalities of an eventual independence and the public institutions to be organised.9 It means that the conflict is not settled, and the methods of Resolution 1244 constitute a new stage in its development rather than a permanent solution.

D. The Implementation Register The period after the Security Council’s re-involvement in Kosovo is characterised by several features: the retreat of the Yugoslav Republic, including not only its armed and paramilitary forces but also its government officials; the return of Albanian refugees to Kosovo and the cessation of organised exactions against its members; an exodus of the majority of the Serbs and an emerging pattern of pressures, threats and even attacks against those remaining—how quickly an oppressed minority can transform into an oppressive majority; and the on-site establishment of international authorities acting under the cover of the United Nations. This situation does not open up to clear perspectives for the future of the territory, its inhabitants or the region as a whole. Instead, it is located most firmly in a register that is much less spectacular than and thus less popularised through the media; it is less political than technical or instrumental. The two different aspects of this register reflect the military/civil dichotomy established by Resolution 1244. On the one hand, the Kosovo Force (KFOR) is a response to a need to coordinate diverse military contingents, including national ones, those integrated with Eurocorps, those under NATO and the Russian contingent, whose presence was imposed rather than consensual. On the other hand, the Special Representative,10 widely chosen intuitu personae and the symbol of a certain national and international ‘officialisation’ by NGOs, is a response to a need to repair and even Yugoslavia and does not make any judgement on the subject. We know, however, that a very large majority rejected an earlier draft of the Resolution that condemned the intervention, but it is difficult to draw a legal conclusion from a non-resolution. 9 Resolution 1244 evokes the ‘substantial autonomy and . . . a veritable self-government in Kosovo’ and reaffirms ‘the attachment of the Member States to the sovereignty and the territorial integrity of the federal Republic of Yugoslavia’ (Preamble), but it is difficult to see how this is the last word on the subject. Some spoke of a ‘residual sovereignty’ of Yugoslavia over Kosovo. 10 A position first held by M Bernard Kouchner, assisted by an American deputy.

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create some civil institutions in order to provide the regular and peaceful social life that constitutes the basis of an autonomous administration, not to say the embryo of a future state. The counterpoint in question is still largely hypothetical, as we have no way of knowing if the methods implemented will end in success. One may simply indicate what the criteria may be for success and hence the components at play. These include but are not limited to: the return to civil peace in Kosovo; the guaranteed continued coexistence of communities; the regular functioning of a civil society on the legal and institutional level; the population’s freedom of expression regarding the final fate of the territory and the choice of its public authorities; the entrenchment of democratic principles and respect for public freedom; normalised relations with the Yugoslav Republic, as well as with neighbouring countries, for example through a stability Pact for South-Eastern Europe;11 and reasonable timeframes for the construction and reconstruction operations that are under way, allowing for the withdrawal of the artificial limbs comprising KFOR and the international administration. Several forms of potential failure offset these potential successes. The most benign would be the indefinite prolongation of the present transitional mechanisms.12 Along with this would likely be recurring communal tension and the secret establishment of a mafia system that would use the international regime as cover, transposing the drift that already affects certain states. The most serious failure would be the resumption of the conflict that struck the former Yugoslavia for over ten years, involving jointly or successively Macedonia, Montenegro, Bosnia and Albania and giving rise to foreign interventions scarcely better conceived of than their predecessor. Between the two possibilities, the variants are multiple and unpredictable. We can simply conclude provisionally that the international community in its diverse authorities—interstate or institutional, universal or regional—has not until now been in a position to conceive of nor define a strategy for the return to peace any more than it could successfully devise a strategy for development in the past. The techniques currently used are so haphazard and piecemeal that the astonishing thing is not so much that they do not work but rather that they manage to be relatively successful. 11 The future Stability Pact is mentioned in §17 of Resolution 1244, and the following aims are assigned to it: ‘further democracy, economic prosperity, stability and regional cooperation’. On this pact, see the series of articles ‘Three Points of View on the Stability Pact’ in the 2000, volume 1 issue of Annuaire français de relations internationals, in particular, V-Y Ghebali, ‘The Launch of the Stability Pact for South-East Europe’ (2000) 1 Annuaire français de relations internationals 227–42. 12 Para 19 of Resolution 1244 foresees that the operation is established for an initial period of 12 months but adds that it will continue as long as the Council has not decided otherwise, which essentially confers upon it an indefinite duration; moreover, it subordinates its conclusions to the agreement of all the permanent members of the Security Council, of which the three Western members are present in the field.

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II. Doctrineless Practice: Legal Deconstruction or Reconstruction? The Kosovo affair now appears to have been as much about the deconstruction of established doctrines and old beliefs about positive law as it was about the formation of a new normative and practical corpus vis-à-vis peacekeeping and the law of security. Empiricism and utilitarianism are usual in such circumstances. But what was once considered well established and seemingly substantiated by the UN Charter was put into question without being replaced by a coherent new explanation of the law or by a doctrine governing its application. Among the issues that suffered this fate are: the conditions of the recourse to force; the relations between UN Members States and NATO; and the international enterprise that aimed to restore peace in Kosovo.

A. The Conditions of the Recourse to Force in International Law The question of the conditions of the recourse to force in international law remains at hand, and the Kosovo affair has obscured it more than clarified it. A recourse to force without prior authorisation from the Security Council, apart from self-defence, can only be disruptive, even if it occurs in the name of international law and within an institutional context (in this case NATO). The fact that the interveners offered no convincing justifications and instead provided several varied grounds, which in fact means none, means that the question has remained open. We could have seized the opportunity to affirm and develop the doctrine of humanitarian intervention, sustaining it with well-reasoned arguments that are contrary to neither the UN Charter nor international law.13 The recognition of humanitarian intervention would not have necessitated a change in existing law any more than it would have necessitated the establishment of new custom. Instead, its seeds or referents can be found if one reads between the lines of the Charter, which does not completely forbid the recourse to force by states but rather force that, according to its own terms, is perpetrated ‘either against the territorial integrity or the political independence of any state, or in any other way incompatible with the purposes of the United Nations’—and the willingness to put an end to concerted and massive attacks against humanitarian law is certainly not incompatible with the purposes of the United Nations. The failure to do this has had several negative results. On the one hand, this deficiency underlines the exceptional nature of the intervention in Kosovo, in such a way that the moral benefit that could have resulted from 13 See the argumentation developed in S Sur, ‘Aspects juridiques de l’intervention de pays membres de l’OTAN au Kosovo’ (1999) 12 Défense nationale 44–62, translated in chapter 27 of the present volume.

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a fair-minded engagement in protecting essential values has been broadly cancelled. Furthermore, it has no doubt led certain states to believe that Western countries, chiefly the United States, will not concern themselves with the Security Council or hesitate to employ force against sovereign states for undetermined reasons, which might in fact pertain to domestic matters such as regime change.14 As a consequence, the preventive dimension of the restrictions on the recourse to force in international security is necessarily affected. Finally, if there is a doctrine that arises as a counterpoint, it involves a unilateral right to the recourse to force according to criteria defined by the interested state, the United States in particular, with some even arguing that a democratic country should never subordinate its freedom of action to the decisions of an organisation that is composed of a number of non-democratic countries.15 Affirmation of the doctrine of humanitarian intervention would also have had the added benefit of leading us to interrogate the suitability of certain military means for this type of intervention, in particular high-altitude bombing campaigns and other operations or manoeuvres with potentially severe consequences. Humanitarian intervention, if one accepts it in principle, not only constitutes an added theory of recourse to legal force; its implementation brings with it particular constraints in the use of violence, which ought to be particularly attentive to the protection of civilians as with those institutions necessary for their existence.16 Here, legal and strategic reflection ought to be combined. Finally, the extension of the right to use force outside of the stipulations of Article 5 of the NATO Atlantic Pact constitutes a challenge to classical interpretations of that text, not to mention a challenge of the Pact’s heretofore accepted subordination to the UN Charter. Everything happened as if, apart from a formal modification, NATO were a simple politico-military tool, a framework for collegiate decision-making on the political level and an instrument of military intervention, having an appropriate logistics and a pre-constituted multinational command. The result is then a general uncertainty about the conditions of implementation, both legal and material, of the Atlantic Pact. NATO can seemingly no longer be limited to collective self-defence of its members within a 14 Such is the manner in which the United States continues to bombard Iraq regularly, on a very questionable legal basis, for violations of both Resolution 687 and later Resolutions; in much the same way, the American bombing of Afghanistan and Sudan in 1998 after the attacks committed against American embassies in Africa, even if they barely gave rise to international reactions, are also of a questionable legality. The United States thus seems to have freed itself in principle of the necessity of prior authorisation from the Security Council and to have established a practice in this regard. 15 Such remarks were often made in the United States Senate, in particular by Senator Jesse Helms. 16 The International Court of Justice, in the previously cited ordinances, declares that ‘all the parties that present themselves before it must act according to their obligations by virtue of the United Nations Charter and international law, including humanitarian law’.

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geographically determined framework. We could interpret this extension in two different ways. If on the one hand we are looking at all costs for a connection to the Charter, a claim could be made that we are in the presence of a variation of the Acheson Resolution benefiting—or borne by—the Alliance: the supposed or demonstrated incapability of the Security Council to decide the deployment of armed force would justify substituting the action of the Alliance. This action is not undertaken by an organ of the United Nations; but NATO, as an external authority, remains nonetheless subordinated to the aims and principles of the UN Charter.17 We could, on the other hand attempt to subtract the Alliance and its mechanisms from the Charter, by conferring on it an autonomous right of action and allowing it to do what its Member States cannot undertake individually, which would lead more directly to the dismantling of the Charter. The new concept of security adopted by NATO could be interpreted in this sense, at any rate by certain members of the Alliance.18 There is also material uncertainty regarding the implementation of the Atlantic Pact. On one hand, the NATO military force appears to depend on solidarity and on the unity of the command during the conduct of war operations. In fact it is clear that in the Kosovo affair, military decisions, especially the choice of targets, were subjected to regular consultations of diverse national political authorities, to the great displeasure of certain generals.19 In other words, there was a manifest failure to define a strategy that took into account the humanitarian nature of interventions, according to the previously mentioned desire to adapt the means to the ends of a humanitarian intervention. But we can also consider that this confusion between the political and the military has weakened the Alliance in the long term. The demons that characterised the earlier UN Protection Force (UNPROFOR) have reared their heads again, although in inverted form: rather than political problems being treated as military problems, during the Kosovo affair, it was politicians who interfered with specifically military problems.20

17 Art 5(2) of the NATO Pact stipulates that measures, including those consisting of the deployment of armed force, should be brought to the knowledge of the Security Council and, echoing Art 51 of the UN Charter, ‘will end once the Security Council will have taken the necessary measures for re-establishing and maintaining international peace and security’. 18 The Strategic Concept of the Alliance was adopted on the occasion of the 50th anniversary of the Atlantic Alliance on 23 and 24 April 1999. We know that a divergence of interpretation continues to keep several countries in opposition with one another, in particular France and the United States, with France affirming the necessity of prior authorisation from the Security Council for any armed action apart from self-defence. 19 A Novosseloff, ‘L’organisation politico-militaire de L’OTAN c l’épreuvre du KOSOVO’ (2000) 1 Annuaire français de relations internationales 179–96. 20 See in particular the proceedings of the symposium Opérations des United Nations: Leçons de terrain [UN Peace Operations: Lessons from the Ground] (Paris, Fondation pour les études de défense, 1995).

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B. The Relations between NATO and Its Member States The relations between NATO and its Member States also deserve special attention. The Alliance served as a framework for the justification, decision and action of the military intervention in Kosovo. A number of participants even took on roles more appropriate to international organisations, which transcended, even transfigured the actions of individual Member States. This transmutation of the action of an interstate military coalition in an operation conducted by an international institution occurred at three levels. The first involved the relations between the members themselves, who found themselves organised in groups and following previously constituted procedures. The second level involved the relations between each NATO state government and the public opinion of its respective population, with the former generally trying to present the intervention as a matter of collective enterprise that at least in theory was based on international treaty and therefore required minimal debate regarding the deployment of armed force under domestic law.21 The third level of the transmutation involved the relations between NATO and the Yugoslav Republic, which may have hoped to disperse a simple, ad hoc coalition but found itself confronted, by all appearances, with the formidable and united power of an integrated military organisation. The common standard of the Alliance tended thus to cover the national flags of different armed forces, who in actuality had varying levels of engagement. The appearance of unity was in fact only superficial. The legal reality was that such an action could not truly derive from the Atlantic Pact but was undertaken by states acting individually and on their own accord. Moreover, the Pact does not provide for any automatic solidarity; rather the decision to resort to force, even on the basis of its stipulations, is based on an option that each Member State is free to take or not. We also know that the combat forces fought under their own flags, and each had to accept the consequences and the possible international responsibility for their acts. As such, the legal veil provided by the Alliance was flimsy at best. This was so evident that when the Yugoslav Republic appealed to the ICJ on the subject of the intervention, the intervening states were addressed individually and separately, and that is also how they each set about defending themselves. Certainly, the Court had no capacity to differentiate between various members of an international organisation, and the Yugoslav Republic unsurprisingly wanted only to recognise individual states rather than taking on the Alliance as a whole.

21 Unlike what happened before the Gulf War, for example, during the Kosovo affair, the French Parliament was not called upon to express an opinion prior to the use of armed force by a debate and by a vote. See H Tourard, ‘La France dans la crise du Kosovo: cohabitation et processus décisionnel’ (2000) 1 Annuaire français de relations internationales 197–205.

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The differences in legal perceptions concerning the state of the law and the different manners in which the NATO Member States and the Yugoslav Republic presented their respective legal cases are notable. It was as if the adversaries were positioned in distinct periods of international law. The Yugoslav Republic seemed committed to the classical principles of state sovereignty and non-interference in domestic matters and relied on classical mechanisms of legal settlement by submitting the case to the ICJ. Its behaviour evokes a logic of peaceful coexistence between states that have opposing political, economic and social systems—simply speaking, the logic of Resolution 2625 (XXV).22 In contrast, the NATO countries placed themselves in an international, East–West-based morality centred around the primacy of human rights and of humanitarian law; their cases downplayed the sovereignty of states and made little if any reference to the notion that domestic matters are an exclusively national domain. Moreover, when these countries thought of international jurisdiction, it was first of all of the recently instituted International Criminal Tribunals for the repression of individual crimes. Hence it was not only two fundamentally different conceptions but two eras of international law that confronted each other. The first, more classical position is often adopted by numerous states, most notably Russia and China, whereas the second position is a predominantly Western one.23 However, the International Criminal Tribunal for the former Yugoslavia (ICTY), even before the return of the Security Council, began to provide a link between universalism and regionalism, since this Tribunal acts in the name of the United Nations.

C. The Return to the Security Council With the return of the Security Council and the adoption of Resolution 1244, we pass, in a manner of speaking, from the devil to the details. This phase of the Kosovo affair saw the establishment of an operation without precedent in its scope: its objectives encompassed the complete management of a disorganised territory, its reconstruction and a transition to a final status, all of which—if the operation remains within the framework provided by the Resolution—must occur while maintaining the territorial integrity of the Yugoslav Republic. The operation therefore focused on the 22 Resolution 2625 (XXV) of the UN General Assembly (24 October 1970), bearing the title ‘Declaration relating to Principles of International Law affecting Friendly Relations and Cooperation between States according to the United Nations Charter’. See P Dupuy, Grands textes de droit international public (Paris, Dalloz, 1996) 76–85, in particular, ‘Principe relatif au devoir de ne pas intervenir dans les affaires relevant de la compétence nationale d’un Etat, conformément à la Charte’. 23 A certain ambiguity exists thus in the justifications put forward for the intervention, to the extent that they are sometimes referred to as the values proper to the European continent.

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coordination of the activities of the UN Interim Administration Mission in Kosovo (UNMIK) and those of KFOR, regulating the latter as much as the former.24 The role of the different national contingents of KFOR, particularly the Russian contingent, had to be articulated, and conditions had to be laid down for the deployment of force in the framework of KFOR’s security mission. The mission departed radically from previous UN operations in several important ways, even taking into account the widening and development that such ventures had seen in previous years, most notably through the adoption of Resolution 1244 within the framework of Chapter VII, a practice that became common. It would be proper in the first place to underline the role of the G8 in the definition of the political principles that were accepted by Resolution 1244 and explicitly annexed to its text.25 This formula for including the G8 can be seen as an attempt to compensate for the continuing absence of Germany and Japan from permanent member status, while simultaneously isolating China. Moreover, the decision in Kosovo to separate the military/security aspects of the mission from the civil aspects (the former becoming the province of KFOR, ie, NATO; the latter becoming the province of UNMIK) contrasts with the earlier interdependence of these two aspects and with the standard strategy of unifying management.26 Concerning NATO, we note that the consecration of its role in KFOR constitutes a rare implementation of Chapter VIII of the Charter, recognising the organisation as a regional organisation, which had been under discussion for a long time. This phase of the Kosovo affair in fact is far removed from the principles of neutrality and impartiality that once marked classic UN operations in the face of international or civil conflicts.27 The UNMIK reconstruction of the Kosovo administrative and judiciary systems effectively means the near-complete elimination of previous institutions and law. Moreover, the KLA’s role in managing the terrority, which no doubt came at the detriment of any other political force, is tolerated and even accepted.28 In these conditions, we may ask ourselves if the United Nations regained control of the operation or if the Security Council did not instead arrange for its own rejection. Beyond an international legitimisation of principle, the strongest link that the United Nations keeps with the operation in 24

§§9 and 11 of Resolution 1244 are specifically devoted to this. The Declaration of Petersburg, which resulted from the meeting of the G8 ministers of External Affairs held on 6 May 1999, is taken up in Annex I of Resolution 1244 and, according to the rules for the interpretation of international instruments, must be considered as an integral part of its text. 26 See Opérations des United Nations : Leçons de terrain (above n 20). 27 Ibid. 28 Resolution 1244 provides for ‘of an agreed number of Yugoslav and Serb military and police officers [in Kosovo] to fulfil the functions prescribed in Annexe 2’. Annexe 2 deals with international civil and security presences and provides that Yugoslav forces in particular can maintain a presence at the main border posts. 25

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Kosovo resides essentially in the demand addressed to all concerned, including KFOR, to cooperate with the ICTY and thus to participate actively in the arrest of sought-after individuals.29

III. Conclusion The preceding observations have a critical tone: they offer no convincing legal justification for an intervention by an international organisation such as NATO; and they therefore appear to contribute little to the doctrine of humanitarian intervention, a possibility that was foremost in the minds of those who painstakingly formulated Resolution 1244. These basically negative impressions are not, however, without nuance. It is in fact remarkable that we could achieve so effectively and so swiftly such a strong mobilisation against serious attacks on humanitarian law, and then rapidly ensure, for the most part, the return of such a large number of refugees. It is also remarkable that the concerned states were then able to put such a fairminded effort into a difficult peace operation. On a more properly legal level, the techniques of international law were more effective for organising cooperation between intervening states than for justifying the operation: under the framework of a single Council Resolution, these techniques have hence served as a basis for the reorganisation of the internal juridical order of Kosovo. We can conclude from this that the techniques employed during the Kosovo affair are the right instruments for operational practice, but less effective in the order of declaratory law, which would turn the classical image of international law upside down. We can also conclude from this that it is difficult to organise such operations outside the framework of the United Nations, and recourse to the Security Council remains, when all is said and done, indispensable. Thus, from deconstruction new creations may emerge, but the practices of these new creations will long search for suitable doctrines.

29 §14 of Resolution 1244 ‘demands that all the parties concerned, including the international security presence, extend their complete cooperation to the International Tribunal for the former Yugoslavia’.

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29 About the Preventive War Doctrine*

A

MERICAN UNILATERALISM WAS certainly not born with the threat of terrorism; we have seen signs of it over several decades in the most diverse arenas, as if the United States considers itself subject only to their own domestic laws. For them, international law is only the external projection of these domestic laws, and American law is often better for other states than interstate conventions or the decisions made by international organisations. It goes without saying that other states are far from sharing such a perception, such that the American tendency towards unilateralism has come up against a mixture of resistance and reluctant acceptance from those who, without conflicting with the United States directly, attempt to reintegrate it into a multilateral or collective framework. Security Council Resolution 1368, in its efforts to channel armed action against Afghanistan within a UN framework, is a significant example of this. On the contrary, the 2003 Iraq war demonstrates the implementation of a questionable doctrine, that of preventive warfare.

I. Dimensions of American Unilateralism American unilateralism has several origins that are not specifically related to the fight against terrorism, but this ‘war’ has provided a particularly wide range of application because terrorism is viewed as a threat to US national security, before that of international security. Added to this is doubt regarding the efficiency of the means international law offers to react effectively. International conventions, for example, are long in negotiation, imply compromise and are applied randomly; and adherence to them is not universal. Security Council decisions likewise require a majority—a majority that must be without any permanent member opposition—which therefore necessitates negotiating with and accepting the authority of states not necessarily well disposed towards American interests. The legitimacy of these institutions and mechanisms can also be called into question. The United States is a democratic country, so why would they allow the protection of their * Previously published and extracted from ‘La doctrine de la guerre préventive’ in M Glennon and S Sur (eds), Terrorisme et droit international, Centre de recherche de l’Académie de droit international de La Haye series (Dordrecht, Martinus Nijhoff Publishers, 2007) 77–87.

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legitimate interests to be dependent on countries that are not necessarily democratic or on international institutions that are accountable to no higher authority? In addition, the usefulness of these rules or international decisions is doubtful. Because of the vast means at their disposal, does the United States really need such institutions or mechanisms to act? We know that at the time of the intervention against Iraq in 1991 and 2003, the authorisation the President received from Congress was considered more important than any possible authorisations given by the Security Council. This unilateralism with regard to international rules and to other states can be directed in different directions: it could lead them to act alone or with others (but only those willing to rally around the United States) or against the others, either those who are the target of their actions or those willing to contest their will. It is probably the dialectic between these temptations and unilateral actions on the one hand and the institutional dynamics (ie, the Security Council) on the other that constitutes the most important characteristic of international legal reactions with regards to international terrorism. It can even be seen in terms of a crisis situation for international law. If this is the case, the issue is not just between two tendencies but rather three: conventional multilateralism, which is preferred by the majority of states; institutional action, based on a hierarchical conception of international relations, a multi-polarity benefiting the permanent members of the Security Council, which includes the United States; and unilateralism, a doctrine elaborated by the United States that risks being imitated by a growing number of other states. To simplify, unilateralism would be a return to nineteenth-century international law; multilateralism characterises that of the twentieth century; and institutional action marks the early years of the twenty-first century, as a potential without future or as a promising start to a multi-polarity under construction. But this dialectic is not necessarily negative either. It can lead to a useful complementarity as long as one chooses the most appropriate mode of action for the circumstances. It can also develop useful competing alternatives, with the understanding that if we do not find international, multilateral or institutional solutions, we are opening ourselves to unilateral actions, and this could contribute to facilitating these solutions. Whatever the case, America’s unilateral actions have been as spectacular as was the resolve of the United States in undertaking them. In its highest form, this temptation is manifested through the idea and sometimes the practice of unilateral law by a state considering itself pushed to make the decision alone to resort to armed force, even at times preventively. This is the doctrine of preventive or ‘pre-emptive’ war or legitimate preventive defence that was put forward by the George W Bush administration.1 1 Particularly based on the ‘National Security Strategy of the US’, which was distributed in September 2002 and emphasises the concept of ‘pre-emptive’ war.

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This doctrine’s attitude to international rules regarding the use of armed force, those within the UN Charter in particular, relies on various arguments. This diverse set of justifications more or less strays from the Charter. One must underline the fact that this temptation is external to and anterior to the terrorist threat and also corresponds to older practices, notably by the United States but also by states such as Israel. It was specifically affirmed with the 2003 Iraq intervention, which was presented as an instrument to fight against the proliferation of weapons of mass destruction.

II. The Doctrine of Preventive War and Its Variants Variations of the preventive war doctrine could be classified as a function of the arguments invoked to support them. For various reasons, some reject the application of international rules in this area, though they come to the same result. Others on the contrary base their arguments on such rules but interpret them in a unilateral and broad manner. Below we will distinguish these arguments, moving from the most radical to the most moderate.2 The first denies the pertinence of international law; the second substitutes more recent law for the Charter; the third interprets the clauses broadly; the fourth considers that Security Council inaction can be compensated for by state actions.

A. The Precedence of Domestic Law over International Law This argument is inherent to a number of American positions and is not limited to the conditions regarding the use of armed force. We find different practical consequences in various domains, ranging from commercial exchanges to questions of security.3 It challenges the relationship between 2 Amidst an abundant literature, see in particular M Glennon, ‘Military Action against Terrorists under International Law: The Fog of Law’ (2002) Harvard Journal of International Law and Public Policy 540; M Glennon, ‘Why the Security Council Failed’ (2003) 3 Foreign Affairs 16; M Glennon, ‘How International Rules Die’ (2005) Georgetown Law Journal 939–91; J Yoo, ‘Using Force’ (2004) University of Chicago Law Review 23; B Lothar, ‘The Use of Force in the Post-Cold War Era: From Collective Action Back to Pre-Charter SelfDefence?’ in M Bothe, ME O’Connell and N Ronzitti (eds), Redefining Sovereignty (New York, Transnational Publishers, 2005); R Kolb, Le Droit relatif au maintien de la paix internationale (Paris, IHEI, 2005). For a study of these theses, see also the series of articles published in the Annuaire français de relations internationales (2005) 6, specifically: SM Walt, ‘La guerre préventive: une stratégie illogique’ 138–52; P Weckel, ‘Nouvelles pratiques américaines en matière de légitime défense?’ 128–37. See also X Pacreau, De L’Intervention au Kosovo en 1999 à l’intervention en Iraq de 2003 (Paris, LGDJ, 2006). 3 Thus the arrest of President Noriega in Panama after a military operation, in order for him to be brought before an American court; the possibility that has been maintained to carry out commercial reprisals outside of the WTO mechanisms, despite the fact the United States is a WTO member; or even the law that allows the United States to employ force to free American citizens taken prisoner in the Hague, on the basis of sanctions by the International Criminal Court.

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international and domestic legal systems. According to this thesis, the engagements resulting from international law cannot bind the United States unless they conform to America’s own domestic law, and only to the extent that they are validated by domestic texts. This is the classic concept of monism, with primacy of domestic law, and it would be fair to recognise that the United States does not have a monopoly over this. Thus, when the United States decides on an international action that involves the use of force, it is both necessary and sufficient that it should conform to American law. Congressional resolution may be required, and this provides a sufficient basis. This argument was specifically developed in 1991 before the intervention to free Kuwait from Iraqi occupation, to support the fact that, even without Security Council authorisation, the operation would have been carried out. It was concretised in 2003 at the time of the armed intervention against Iraq. The Congressional resolution authorising the use of force did mention different Security Council Resolutions but made them at the same time elements of American law. At the time it was certainly not a question of terrorism, but the speech about the ‘Global War Against Terrorism’ implies that it could be extended to include terrorism if the circumstances so require. This conception thus lays aside the UN Charter, if and when it is judged contrary to American law and, in this framework, American interests, whether they relate to security or other types of interests. This is a contemporary variation of the ‘chiffon de papier’ or shred of paper theory that Imperial Germany made so infamous in 1914. It is generally true that, in terms of domestic law, rules of an international origin can be applied only based on domestic law, and they are in some way internalised. They are thus subject to its fundamental rules and in most cases considered inferior, at least to constitutional laws. For some states, they are at best equal to domestic law, so that the most recent law supersedes the oldest treaty. This doctrine of monism, with the superiority of domestic law, thus remains the dominant practice and is actually necessary when one looks at it from the viewpoint of domestic law: international law can be applied only in virtue of domestic decrees. But this monism misunderstands the dynamics of international legal relations, which are based, for their part, on international rules and on the commitments they imply. Monism truncates the duality of legal systems; it is deliberately or otherwise blind to the existence of an international legal order or system. This comes down to denying the existence of international law. This fundamentalist argumentation, based on an absolute conception of sovereignty, thus destroys in its very principle even the idea of organised international legal relations. It is clearly contradicted by international practice.

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B. The Obsolescence of the Charter Rules relating to the Use of Armed Force This thesis, rather academic in nature, is supported by some American scholars, but it goes back to older analyses.4 Its main argument consists of maintaining the idea that as interstate war has been widely practiced in international and interstate relations, despite its prohibition in principle by Article 2§4 of the Charter, this norm should be considered abrogated by a contrary practice that has acquired the character of a new custom, rendering the previous written rules obsolete. In passing, the Kellogg-Briand Pact, prohibiting war as a means of national politics, would also be abrogated, and the Charter does not seem to have had the effect of disposing of it.5 In other words, we must conclude that we have returned to a previous state of law, and states freely evaluate the conditions under which they protect their national interests by the use of armed force. Let us cite a practice related to the fight against terrorism that developed before the Charter and was maintained after its conclusion. In 1900, after the German Ambassador was assassinated in China, a military expedition of European states under German command resulted in the occupation of a part of China. Later, several aircraft hijackings led to the countries involved carrying out armed interventions in foreign airports where the aircrafts carrying hostages of different nationalities had landed. Another examples lies in the assassination attempt against President George Bush Sr in Kuwait, attributed to Iraq, which led to the latter being bombarded by the American air force. As a final case in point, when a large number of American diplomatic personnel were taken hostage in Teheran in 1980, an airborne military operation by American troops was sent (unsuccessfully) to free them. Does the continuity of these reactions, before and after the formulation of the UN Charter, signify the right to use unilateral force against terrorist acts? It is true that a number of them are based on legitimate self-defence,6 but is this invocation not purely formal, an alibi for a return to the old right to use force to protect one’s national interests? The gravity of this can be measured by remembering that it is the series of reactions that followed the Sarajevo terrorist attack in 1914, the ultimatum to Serbia, whom AustriaHungary held responsible, and their preparations to occupy the country that led to the First World War—in a context, it is true, in which the use of armed force by states was not considered illicit by international law. 4 See, eg, E Giraud, ‘Le droit international public et la politique’ (1963) 3 Recueil des cours de l’Académie de droit international 423–601; E Giraud, ‘L’interdiction du recours à la force: la théorie et la pratique des Nations Unies’ (1963) Revue générale de droit international public 501–44. 5 For the United States, this is the only pertinent pact, as they did not ratify the League of Nations Pact. Supposing the Charter is obsolete in this regard, this fact would not make previous rules disappear. 6 Demanded with particular emphasis, for example, by the Reagan Administration in 1986 to justify the air strike against Libya after the terrorist attacks against American forces.

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Every effort since then has consisted precisely in avoiding a return to similar situations, like the aggressions leading to the Second World War—the rules of the Charter being a direct result of this. We should not therefore take this thesis lightly, as it cancels out a century of progress in terms of international law and the regulation of armed violence exercised by states. First, it raises a problem of principle: can a contrary custom modify the Charter? Then, if it can, is it possible to identify such a custom that would render Article 2§4 obsolete? For the moment we will leave aside the question of whether this rule comes under jus cogens or not, as the notion is so contested and uncertain, even contradictory that it would complicate the analysis without adding anything to it.7 To prevent the possibility of such an amendment, Article 103 of the Charter claims that its text prevails over all international agreements—but the term ‘agreements’ could well signify that only treaties or commitments concluded in written form are concerned, and not customary law. In its favour, there is the observation that codifying does not erase custom, that it can continue to exist in parallel, and nothing is opposed to these developments modifying, even doing away with the older more conventional rules.8 In addition, practice has already led to certain accepted and recognised modifications, although they remain unwritten—thus the changes of the conditions under which a Security Council resolution is adopted and the substitution of Russia for the USSR as a permanent member even though the USSR remains designated by name in the Charter. But is the situation in terms of recourse to armed force really comparable? The fact that numerous interstate conflicts exist is hardly convincing: either they were acts of legitimate self-defence in response to aggression—eg, Iran in 1980 and the United Kingdom after the Shetlands were occupied in 1982—or they were the object of condemnation, even if only in principle. The practice is actually not limited to material behaviour; it incorporates the positions states adopt in given situations, either unilaterally or within the collective framework of international organisations. Now the rules relative to the restriction of recourse to force have been constantly brought to mind, so that even if one did not consider the numerous Resolutions in this area to be elements of a pertinent practice, they clearly show the existence of a generally accepted opinio juris.9 7 See J Combacau and S Sur, Droit international public, Domat Droit public, 7th edn (Paris, Montchrestien, 2006) 50–53; and M Glennon, ‘De l’absurdité du droit impératif (jus cogens)’ (2006) Revue générale de droit international public 530–36. 8 In principle, the ICJ recognises the relationship between treaty law and custom in the Case concerning Military and Paramilitary Activities in and against Nicaragua. The partial obsolescence of the Geneva Convention regarding sea rights in the face of the development of customary rights offers a specific example. 9 In the same case, the ICJ observed that the practice of a rule does not need to be perfect for it to be considered general, but it is sufficient that states conform to it overall. It added that contrary behaviour that is considered a violation or justified by different exceptions is closer to being a confirmation of the rule rather than an invalidation of it (see §186 in particular).

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C. Preventive Self-Defence This conception of a broad-based legitimate self-defence can provide a legal foundation for the theory of preventive or pre-emptive war, which in Bismarck’s time was called ‘prophylactic war’. The American security strategy, adopted in 2002 by President George W Bush’s Administration after the September 11 attacks was an affirmation of this, by referring more precisely to the notion of ‘pre-emptive self-defence’. It targets situations in which an imminent threat leaves no other choice for an efficient defence other than to prevent the attack. In this respect, the distinction between preventive and pre-emptive legitimate defence seems to be more of terminology than of substance, except if we consider that legitimate preventive defence could be directed towards a state or an entity reputed dangerous in itself by its very nature, independently of a threat that has come into being and is current. This would lack legally-based evidence under the terms of the Charter. However, we cannot disregard in its principle the very concept of preventive self-defence—if the elements that constitute an armed aggression are present, if the armed aggression is inevitable and if the urgency of the situation justifies immediate action.10 On this basis, nothing is against legitimate preventive defence being invoked in response to a terrorist threat. The serious difficulty raised by this conception is more to do with its implementation, as it is not easy to prove, and the proof may well not be convincing, in as much as it is based on hypothesis that has not yet become reality. In practice, the United States has not invoked it. It has sought other justifications, which shows that the approach adopted by the leaders is more pragmatic and more prudent than that of certain theoreticians. The setbacks resulting from the intervention by the US-led coalition in Iraq in 2003 seriously detracts from its current pertinence.

D. The Alternative to the Paralysis of the Security Council In reality we are not leaving the domain of legitimate self-defence, as it has in the Charter itself, amongst other things, the function of opening up a state’s own right to carry out an armed action in the absence of a reaction by the Council. Certainly in the Charter, this absence should only be provisional, and unilateral self-defence should only be exercised in a state of urgency, for reasons of self-preservation. However, in practice, if the Council is durably incapable of making a decision due to the threat of or the exercise of a veto, what is considered a subsidiary right becomes a principal and prolonged modality of action. We have, however, attempted 10 These criteria do not seem to have been fulfilled in the case of Israel’s assassination of presumed terrorists in the occupied Palestinian territories.

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to reincorporate it into a more effective logic of collective security—either by applying the Uniting for Peace Resolution11 (of American origin), which shows the constant US effort to keep the hypothesis of the use of armed force open, or by means of organisations of collective self-defence, like the North Atlantic Treaty Organization (NATO). As for the Uniting for Peace Resolution, the idea that it can submit the collective security system to the General Assembly, which is divided and dominated by small states, gives its effectiveness little credibility. In terms of collective organisations of self-defence, one initially thinks of NATO, which has worked effectively in this sense at least twice. On the one hand, in the Kosovo affair, the intervention of the NATO member countries was certainly related to the fight against activities close to terrorism (by the Serbian militia), even if the action was directly targeted towards a state (Serbia-Montenegro);12 and after the September 11 attacks, NATO immediately manifested its solidarity and affirmed its desire to participate in the self-defence of the United States. On the other hand, however, the precedent is incomplete, as the United States declined this solidarity at a military level in the latter case, and the Security Council, using Resolution 1368, exercised its pre-eminence in the matter.

III. Conclusion We thus have to conclude that the doctrine of preventive war, tested so unfortunately in Iraq, has no basis in terms of contemporary international law, and it is even, to all appearances, contrary to the Charter of the United Nations. It goes against the efforts of a century of international law to limit the use of armed force. The United States was the forerunner of these efforts in most cases, which correspond to the best of their traditions. It is not weakness to control armed force; on the contrary, it is the sign of efficient strength to submit to the rule of law and thus to legitimise it. We cannot re-establish our security by creating general disorder and a climate of distrust in international relations. Neglecting international law is always, in the long run, a bad calculation.

11 United Nations General Assembly Resolution 377 (V) ‘Union pour le maintien de la paix’ (3 November 1950) or the ‘United for Peace Resolution’. One of the more recent references to this Resolution and the channel it provides for security questions directed towards the General Assembly in case the Security Council is lacking, appears in the report The Responsibility to Protect, which resulted from the work by the Evans–Sahnoun Commision in 2001. This report suggests that the General Assembly can recommend humane or humanitarian interventions that involve armed force, if the Council does not act. However, it excludes the validity of purely unilateral interventions. 12 See Pacreau, above n 2.

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30 Towards an International Criminal Court: The Rome Statute, NGOs and the UN Security Council*

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HE ROME CONFERENCE led to the adoption of a Treaty establishing the Rome Statute of the International Criminal Court (17 July 1998). The new international institution (the ICC) has the jurisdiction to prosecute individuals for four categories of crimes, which are qualified as international and beyond prescription (Article 5): the crime of genocide; crimes against humanity; war crimes; and the crime of aggression. Open for signature by all states, it shall enter into force only after the number of states that ratify it reaches sixty (Article 126)—in other words, not for some time. Certainly, it is premature to judge this Court before it has given its first judgements, especially because there are hardly any elements of comparison on this subject. Neither the Nuremberg Tribunal nor the Tokyo Tribunal were set up in accordance with the laws of the victorious and occupying powers; and even the special criminal tribunals established by the Security Council for crimes committed in the former Yugoslavia and Rwanda do not constitute real precedents. Apart from their radically different origins, they share an ad hoc character: they appear to be closely linked to a plan for the restoration of peace or for dealing with the aftermath of an armed conflict such that it is difficult to dissociate them from the calamities that gave rise to them. They are in all respects exceptional tribunals, and everyone can only hope for their disappearance once they have fulfilled their mandates. The ICC, however, is of a different nature altogether. The permanence of its jurisdiction in a certain way transforms the odious crimes that it must punish into ordinary crimes in the eyes of international society—as if it were, shall we say, genetically endowed with jurisdiction over them. And in spite of the emphasis placed on condemning such crimes, treating them as ordinary crimes cannot help but give rise to certain misgivings. These * Previously published as ‘Vers une Cour pénale internationale: la Convention de Rome entre les ONG et le Conseil de sécurité’ (1999) 1 RGDIP 29–45.

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misgivings may seem surprising. Is such a court not in consonance with Georges Scelle’s dynamic of the development of international law, a dynamic in which any expert would rejoice? If one takes a cursory look at the evolution of international criminal law—which clearly predates the ICC and will continue to function without it—it appears to be a model flowing from the evolution of international law in its entirety. As such, it moves through three stages. Firstly, international law is limited by the demarcation of jurisdiction among states in order to ensure, on the one hand, the juxtaposition thereof and, on the other, its interdependence—without in any way defining the content of that jurisdiction or the modalities for its exercise. Let us recall in this regard the robust judgement in the Lotus case,1 the vitality of which no one questions, despite some protest and regrets. This judgement deals precisely with the articulation of criminal jurisdiction: each state determines for itself the scope of its criminal jurisdiction with respect to individuals, such that their jurisdictions compete. The attempt to harmonise these jurisdictions always leads to vigorous cooperation in the field of criminal law—such that extradition, which is often regulated by special treaties, is an important component. This evolution has thus led to the development of the field of international criminal law, together with the classification of individual behaviours by international norms as constituting crimes that every state has the jurisdiction to prosecute; as a result, every state is called upon by other states to facilitate prosecution and punishment. Some examples that come to mind are the condemnation of slavery and maritime piracy by international custom or the denunciation of terrorism, especially the hijacking of aircraft, which is condemned by specific conventions. Finally, and here we are dealing with the institution of the International Criminal Court, institutions outside states can be given direct responsibility for prosecuting and punishing violations of internationally defined norms. This of course is the famous evolution from the normative to the institutional so dear to Scelle and many internationalists. Nevertheless, we must point out here a major difference with what Scelle envisioned: the three processes we have outlined do not necessarily follow each other; they build on one another and coexist in such a way that each gets superimposed on the others without really transcending them, like the floors of a building the first stage of which is the permanent, impenetrable foundation of the edifice. Whether one likes it or not, the demarcation of jurisdiction between states and voluntary cooperation among them remains the immutable base of the entire structure. Hence the ICC presents as a radical novelty that cannot be reduced to the sum total of previous developments: individuals become the direct 1

Case of the SS ‘Lotus’, Judgment of 7 September 1927, PCIJ Series A, No 10.

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objects of obligations in that they can be directly summoned before an international jurisdiction as part of internationally instituted proceedings, which can entirely escape the jurisdiction of their state. This is the major difference vis-à-vis previous institutional innovations, such as when the Security Council asked the state of Libya to hand over some of its nationals to other states in order that they be tried there—an obligation going beyond the cooperation established by the conventions relating to the prevention and punishment of aerial hijacking (Resolutions 731 (21 January 1992) and 748 (31 March 1992)). Individuals are, however, more the objects than the subjects of norms thus laid down because they cannot themselves institute criminal proceedings, which remain the prerogative of the States Parties, the Security Council and the Prosecutor under the control of a Pre-Trial Chamber. While recognising the pre-eminent role of states, this triple jurisdiction reflects a certain distrust of states, since it has been designed to compensate for their failure—a latent guilt mechanism that speaks volumes for the spirit of the Rome Statute: keeping states in check in an era when they are viewed with suspicion. Perhaps what lies at the heart of this malaise is the delicate balancing act between the prosecution of individual crimes and the distrust of the states that are normally charged with their punishment. If we look deeper, we can classify the causes of this malaise into broad groups, although of course this is a relative endeavour. One group has to do with doubts about the international prosecution of crimes, which may rely on legal policies that have developed in specific cultural contexts or due to specific political and historical situations; the second group pertains to legal technicalities and has more to do with integrating the future Court into a legal structure that is not necessarily ready to accept it, somewhat like trying to make a horse draw a locomotive.

I. A Context of Failure, Too Many NGOs and Not Enough Universality First and foremost, let us emphasise that the very formulation of the Rome Statute took place in the context of failure at several levels, something the Court alone cannot remedy. Let us also note the conspicuous and at times disproportionate role of nongovernmental organisations (NGOs) in the negotiations for the Statute, which raises questions about the manner in which some states, important ones at that, define their diplomatic positions. Finally, let us note that the virtual universality of the Court’s future jurisdiction could in some way affect its direction.

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A. A Context of Failure The creation of an international court is perhaps a necessity in light of the scale and cruelty of the crimes committed in recent times; and the prevention and punishment of such crimes is no doubt necessary for elementary justice, as well as for the return to peace and the restoration of international security. It is nonetheless a regrettable necessity, for its very existence is a response to collective, even massive strains, which the regular functioning of domestic and international institutions should aim to prevent and occasionally remedy. Their combined failure on all these fronts has in fact, in spite of all the declarations and commemorations, caused a great setback in terms of what we like to call ‘human rights’, though this indeterminate and composite corpus consists of rules that differ both in origin and nature. i. The Failure to Maintain Peace First, we need to acknowledge the failure to maintain peace, not only in the benign sense of peacekeeping operations but in the deepest and most radical sense of the term: a failure with far-reaching repercussions at several levels, leading to a series of successive failures. Not only have the preventive mechanisms set up within the United Nations framework proved to be ineffective; but more disquieting still is our inability to define, even intellectually, the means to address these shortcomings. We will not discuss here the trials and vicissitudes of the United Nations or, more broadly, of international intervention during these past few years, but they seem to have led to a kind of collective stuttering and paralysis. This, we know, is a widespread problem: peacekeeping systems are essentially preventive in nature, it being easier to avert a breach than it is to remedy it once it happens. However, their efficiency should be assessed on both counts. Moreover, we know just how much the problem is complicated by breaches of the peace that are not covered by the initial premise of the UN Charter and its mechanisms. Instituting a Court that records and, to a modest degree, tries to rectify the shortcomings of the peacekeeping operations is only a small consolation. What is more serious is that such a Court may be interpreted as the rejection of preventive action, the failure of which has in a manner of speaking been institutionalised. What is true at the international level is equally true at the national level, provided of course the distinction is still meaningful in this context. The primordial function of a state is to guarantee peace, security and public tranquillity within its territory and, more generally, within all areas under its jurisdiction. The state performs this function not just for the benefit of its inhabitants but also for other states and for international relations, in order to ensure their smooth functioning and peaceful development. Of course, the shortcomings of one state and the collapse of its institutions, almost

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always linked to civil wars and factional clashes, affect first and foremost that particular state. Such failures also seriously call into question the foundations of the interstate order, which remains the bedrock of contemporary international society. The mechanisms provided for in the Charter, like those resulting from previous or alternative systems (alliances, defence and military aid agreements, peaceful conflict resolution techniques), are totally unsuited to such situations, as they on the contrary depend upon the rational and efficient functioning of the punitive apparatuses of states. When a state itself shirks its obligations, the stability of this entire shaky system is threatened, thereby making it impossible to identify the right interlocutors, let alone to hold them responsible. At the judicial level, this state incapacity continues and even expands, because the setting up of an International Court is tantamount to admitting that the states concerned are incapable of guaranteeing through national means the prosecution and punishment of crimes committed on their soil. Indeed, international criminal law is first and foremost substantive and not necessarily institutional. There are international offences that any state can punish, thus promoting the universality and ubiquity of punishment. The Pinochet case has shown that no one can escape the consequences of past crimes, provided the mechanisms in force are utilised effectively. Universal jurisdiction or, more simply, international judicial cooperation would lead to fair trials in which foreign nationals are victims, which is often the case in massive abuses—even without the innovation of international jurisdiction. Instituting a special court does not so much lead to devotion to international punishment as it does to the abandonment of political will by states and to their potential collective refusal to exercise their jurisdiction. And yet we are talking here about the powers to prosecute and punish, which are inextricably linked to the sovereignty of states—as if states were asking to be rid of this bitter chalice and allowed to shed their responsibilities. As such, no state should take pride in the establishment of such a Court, which is a leap in the dark—all the more so because through its permanence and its detachment from any tangible, exceptional circumstance, it gives the impression of institutionalising and thereby trivialising failure. In this, it is radically different from the special tribunals set up by the Security Council to address specific situations. ii. The Regression in the Protection of Human Rights Second, we need to take note of the recent regression in the protection of human rights. This observation may seem surprising, even provocative: is it not precisely the concern for protecting human rights that leads to the international suppression of their violation, especially when these violations attack at their very core the right to life, dignity, respect for the physical and moral integrity belonging to every human being in all places and

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circumstances? However, when one views the situation with perspective, less optimistic conclusions emerge. In effect, ‘human rights’ cannot be considered as a single entity. We will not enter here into any discussion on their intrinsic content—we will not discuss civil and political rights, economic and social rights, formal freedoms and rights to effective remedies or even the so-called rights of the ‘third generation’, which have more to do with legal ideology than legal policy, a discussion of no relevance to us in this context. We will not even talk of the distinction between the rights of citizens and human rights, though in some respects this is more relevant. All we will say is that recent trends tend to lay greater emphasis on human rights than the rights of citizens. The latter are linked to the notion of nationality; they concern individuals rooted in a particular state’s legal order and define the special and exclusive relationship that individuals have with the state. To a certain extent, they are vernacular rights based on a specific and substantial link with the state and can only prosper in that framework. They cannot be universal and identical for all people, as they are exercised exclusively in relation to a given state, are defined and guaranteed by that state alone and are generally based on the condition of nationality and marginally of residence. Human rights, on the other hand, are to a certain extent vehicular rights with a universal vocation, independent of any determined legal order and applicable to all equally. They cannot be analysed in terms of political rights but in terms of more intimate and personal rights—free movement, access to courts, equality of treatment and even asylum. These are nomadic rights as opposed to citizens’ rights, which are sedentary. The two differ in their purpose, perspective and approach. What they have in common, however, is that both are rights that the beneficiaries can claim directly and enjoy personally. They are rights that recognise them as subjects of law. Yet it is undeniable to our eyes that the rights of citizens undeniably provide individuals more comprehensive protection than human rights, detached as they are from any specific state reference and likely as they are to appear as transient as universal. As a consequence, forgetting citizens’ rights in favour of emphasising human rights, which is the recent dominant doctrinal trend, does not necessarily constitute progress. These observations hold good a fortiori for the rights that the Rome Statute aims to protect, which on the whole belong to the domain of humanitarian law—a unified corpus, as noted by the International Court of Justice (ICJ) in its advisory opinion on the legality of the threat and use of nuclear arms.2 This, some may say, constitutes the irreducible core, the very bedrock of human rights, of which the rights of citizens represent the high-

2 Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion of 8 July 1996, ICJ Reports 1996, 226.

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est stage. The same could be said of these rights at the ideological level, but certainly not at the level of their interpretation. Indeed, humanitarian law differs in several respects from its predecessors. First, its point of reference is not that of simple, calm daily life but of torment and catastrophe; it applies to exceptional situations and contains more prohibitions than assertions. In contrast with its predecessors, its violation is criminalised, and it is safeguarded by penal mechanisms. It is concerned not so much with individuals as the collective protection of populations; above all, it defines individuals more as the objects than the subjects of law, and it follows that the Rome Statute does not give individuals, acting alone or collectively, access to the Court. The protection it offers is therefore minimal in some respects and strengthened in others. The heavy emphasis that is currently placed on this minimum guarantee risks, if not undermining the other rights, then making us satisfied that rights are being respected while requiring less proof of exigency. After all, it is not difficult to envisage a legal system—of religious origin, for example—that would view humanitarian law as sacred without granting any recognition to human rights and even less so to the rights of citizens. Let us be very clear here: we are not regretting any improvement of the guarantee of humanitarian law. We are emphasising the fact that we should not forget the rights of citizens, and the fact that restating and reinforcing a lesser showing of exigency implies regression rather than progress. Thus, on the occasion of its fiftieth anniversary, it is not so much the Universal Declaration of Human Rights we are celebrating as the Convention on the Prevention and Punishment of the Crime of Genocide (1948), which we could have hoped by now to be dead letter for lack of purpose.

B. An Excessive Role for NGOs The presence and activism of numerous NGOs is a feature not just of the Rome Statute but also of the recent evolution of multilateralism, which has been increasingly marked by their influence. We have seen this already in the case of the environment, antipersonnel mines and even the judicial context, in the ICJ advisory opinion on the legality of the threat or use of nuclear arms. Not only did NGOs bring weight to bear on the petition submitted to the Court, but they also had a large hand in drafting submissions by states. And so another milestone has been reached. However, we need to distinguish between two kinds of NGOs: operational NGOs, which work in dangerous terrains and whose members do not hesitate to take risks, acting out of devotion to the cause and inspired by generous and respectable motives; and ideological NGOs, which strike normative postures in the hope of becoming international political parties, have no legitimacy, roots or any control and develop a parallel diplomacy that interferes with state diplomacy without any democratic basis. It is

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with respect to this second category that it is appropriate to express serious reservations. We know the Rome Conference was marked by the influence of numerous NGOs, veritable partners in the negotiations. Their participation was both direct and indirect; they enlisted some delegations, defined their positions, provided them with arguments and at times even spoke on their behalf through members who became part of the official state representation. We cannot completely take on here what is perhaps a fundamental movement; nor can we provide in-depth analysis here. However, even in confining ourselves to first impressions, we can note the dispossession of states that have seemed amenable to having their monopoly in the conduct of interstate negotiations stripped away, despite the fact that the Rome Statute is supposed to be an interstate treaty. As a result, the states also agreed to negotiate under the pressure of NGOs, to suffer their suspicion and to be accountable and make concessions to them. Indeed in some ways, the states were like the bargemen of Rimbaud’s Drunken Boat: ‘Des PeauxRouges criards les avaient pris pour cibles, / Les ayant cloués, nus, aux poteaux de couleur.’ [They were captured by howling Redskins, nailed as targets, naked, to painted stakes.] Some argue that in reality we are witnessing an unprecedented spontaneous democratic process, led by radical NGOs and human rights and humanitarian law activists; and this sudden eruption of ‘civil society’ onto the arena of international relations is welcome, since it is forcing states to come to grips with real issues, bringing good values and good sense to humanity as a whole. As a counterargument, one could say that what we are seeing is in fact a complete mockery of the democratic structure and of the state mechanisms in question, to the benefit of self-appointed groups that claim to represent public opinion, which is shaped by and fascinated with the media—which itself has no mandate. In a country like France, for instance, it is surprising to see how little parliamentarians have been involved—or even informed—in comparison with the NGOS, which have no legitimacy; it is as if an administration–NGO dialogue or even partnership has replaced the normal dialogue between government and Parliament. Simply from the point of view of defending the interests of the state, the latter would be on much firmer ground if it were to rely on the democratic support of Parliament rather than allowing itself to be taught political and moral lessons from organisations that demand accountability from others without holding themselves accountable. Certainly, it may be argued that things are not quite so simple, that states do not allow themselves so easily to become the spokespersons or the instruments of ideological groups, and their apparent deference to NGOs can coincide with their own interests. This is the kind of cynical manipulation of international morality for which some states have become masters. It consists of adopting a normative stance, a priori impartial, and of becoming the

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advocate of public interest; and although these states are unable to influence the course of events or achieve any grand design, they claim at least to be the conscience of the international community—clergy states of sorts, presenting themselves as ‘pilot states’. Generally, these states are not the ones that contribute the most to peacekeeping and peace-building in terms of human and material resources. We also find among them states that have a charged past and are quite happy to show a newfound zeal for the subject. Worse still, there are states that believe the Court can never be more than a mere symbol, that the treaty will not come into force and that the Court will be unable to function. As Winston Churchill once said to Joseph Stalin, ‘The eagle should permit the small birds to sing’,3 but making such concessions to NGOs amounts to buying, at a good price, a good conscience and their goodwill. Such acquiescence provides tacit agreement to remain within the confines of the discourse and rhetoric of human rights, the repetitive championing of which has become one of the greatest hypocrisies of the recent past. It is nonetheless true that these arguments will not hold against the ICC. When assessing its utility, purity of intentions hardly matters. ‘Appuyons nous sur les mauvais motifs pour nous fortifier dans les bons desseins,’ wrote the French moralist Vauvenargues. [Let us rely on bad motives to strengthen ourselves in good plans.] However, when we talk of NGOs and the Rome Statute, it would be completely erroneous to think their role ended at the negotiating table or even with the final commitment of the states. They are looking to play an official role in the initiation of international action, even in conducting the investigations. Article 15 of the Statute allows the Prosecutor to initiate investigation at his or her own initiative ‘on the basis of information on crimes within the jurisdiction of the Court’ (§1), to ‘analyse the seriousness of the information received’ and to ‘seek additional information from states, organs of the United Nations, intergovernmental or nongovernmental organisations, or other reliable sources that he or she deems appropriate’ (§2). This wording is strange in more ways than one. NGOs are placed in the same category as states and interstate organisations, although the modalities of their organisation and functioning do not provide any serious guarantee, and their transparency is very limited. Furthermore, they are described as ‘reliable sources’, which on the one hand gives them a priori an odd stamp of respectability and on the other hand indicates that the worth of the information will be judged on the basis of its origin and not its content or the existence of proof. This is an ideological conception of legal action akin to basing one’s conviction on the status of a witness. 3 Churchill’s statement to Stalin at Yalta was apparently a paraphrase of Shakespeare’s line from Titus Andronicus, ‘The eagle suffers little birds to sing and is not careful what they mean thereby.’

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The term ‘witness’, however, doesn’t say it all: what this provision allows for in fact is NGOs becoming real partners in public action, in permanent collaboration with the institution of the ICC and through effective dissemination by the information-starved media. Within this framework, they will likely exert considerable pressure on the judicial mechanism or at the very least conduct investigations for public-opinion trials of states. Are we not moving towards the Permanent Peoples’ Tribunal of the 1960s and 1970s, which was established at the private initiative of activist philosophers, not so much in order to deliver justice but in order to expose and condemn terrible crimes? Can righteous indignation take the place of impartial scrutiny? Are we not running the risk of officialising and giving the stamp of public authority to a partisan enterprise served by the media, which is not known for its objectivity—impartial research of facts and the principled exploration of both sides of an argument not being their bread and butter. We have here a possible if not probable seed of subversion, built right into the institution of the ICC from the beginning. The argument in opposition is that the position of Prosecutor in itself offers guarantees and in any case acts under the control of the Pre-Trial Chamber. No doubt this is true, but that underestimates the pressure of the media, which acts with as much haste as blindness and only sheds partial light on events. A UN Secretary-General lamented not so long ago the fact that too often the Security Council agenda is determined by CNN. Will the future International Criminal Court see a replay of the same scenario?

C. Failed Universality One of the conditions for the ICC to be effective is that its jurisdiction must be as universal as possible. The fulfilment of this condition is vital not merely for its functioning on a practical level but also, and perhaps most importantly, for the image the Court gives of itself. We all know the adage: it is not enough for international justice to be just; it must be perceived as such. We understand it well: justice must not only deliver a verdict but also redress the offences against the law, calm tensions, restore peace and give moral satisfaction to victims and society as a whole. This objective will not be met if, in spite of its intrinsic qualities, justice lets discrimination persist and fails to deal even-handedly with similar situations, thus appearing to be partial and biased. Consequently, the danger posed by the absence of universality increases. On the one hand, the states that accept the ICC may be tempted to scale down their cooperation the moment that they feel the constraints placed on them are not accepted by others and that they are exposing themselves to international pressure that others have escaped. On the other hand, recalcitrant states could fight against the Court’s jurisdiction on the grounds that it is applied to their nationals without their consent, which is a possibility in

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view of the ICC’s ratione personae jurisdiction, as proceedings can be initiated by any State Party where punishable crimes have been committed on their territory. Finally, whenever the supposedly universal rules the Court are subjected to different mechanisms of application at the international level— interpreted through an international legal lens for some and a national legal lens for others—the very universality of these rules is in jeopardy. When that point is reached, the universality of the jurisdiction of the ICC will have failed. Certainly, we can congratulate ourselves in that one hundred and forty states have signed the Final Act of the Conference. However, in international society, it is as important to weigh the votes as to count them. The seven states that opposed the Statute and those that abstained are far from negligible: the United States, China, India, Israel are some of the countries that opposed the Statute, while most Arab countries abstained. They may not form a homogeneous opposition, but their very diversity could serve their interests. Besides, they represent half of humankind, and so we should have no illusions about any massive state support. The rejection by the United States is particularly significant, since there can be no doubting the high conception this state has of human rights and its attachment to the respect for legal and judicial procedures. True, it often does have a specific idea of international law, viewing it far too frequently as an external projection of its national law, if this coincides with its national interests. One can condemn such a negative attitude, but there is little one can do about it in the foreseeable future. We would do well to recall the Montego Bay Convention: America’s rejection stripped it of much its substance, and it came into force only after being brought into line with America’s desiderata, using procedures that were quite extraordinary. Is it possible for multilateralism to be efficient without American support? This, at the very least, is the challenge the Rome Statute has to overcome. However, there was nothing inevitable about this lack of universality. It was the product of the choice of judicial policy, even by default. The United States—but also China—has accepted international courts within other legal frameworks, for example special tribunals set up by the Security Council, with obligatory and universal jurisdiction. Undoubtedly, this is an advantage of special tribunals, though not the only one—we will come back to this later. In the context of the Rome Conference, perhaps our haste to bring it about has resulted in the sacrifice of universality for the speedy establishment of the ICC, which has the effect of an announcement of sorts. It is another sign that the Conference was held under pressure, effective in the case of some states, ineffective in the case of those powerful enough to escape from it, either because they had the support of their parliaments or because, on the contrary, the nature of their institutions makes them immune to media-driven NGO appeals. It could be argued that we have preferred a qualitative leap over universality, a breakthrough over a comprehensive expansion, and integrity over

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compromise, in the hope that in the long run these virtues will act as a driving force. On the contrary, we could end up with a kind of communitarisation of international criminal law, a strengthened cooperation within the limited framework of the Member States of the European Union. But can this cooperation succeed in practice, delicately poised as it is between the universality of the principles it claims to adhere to and the partial nature of the mechanisms on which it is based?

II. The Definition of Crimes Re-examined: The Difficulty of Complementarity and an Omnipotent Security Council The problems of legal technicalities raised by the Rome Statute are manifold and of unequal importance. We could for instance wonder about the dangers posed by the proliferation of international courts, as their role and procedures have not been defined clearly and could thus result in conflicting jurisprudence. We could also hope that the procedure of the ICC would take greater note of the diversity of criminal systems to ensure that the individuals summoned before it, be they defendants or witnesses, are treated equally. Let us limit ourselves here to underscoring the problems that appear to be most immediately striking, as they condition the very implementation of the ICC mechanisms, namely the issues related to the definition of crimes; the complementary between domestic courts and the ICC; and the articulation of the jurisdiction and powers of the Court and those of the Security Council.

A. Questions Related to the Definition of Crimes First, we need to emphasise the positive aspects of the founding of the ICC: no reservation may be made to the Statute, which should ensure its normative unity; crimes such as drug trafficking have not been included within this framework of crimes, as they do not constitute the ‘unimaginable atrocities that deeply shock the conscience of humanity’, the prevention and punishment of which is emphasised in the Preamble. Yet in spite of these merits, there is still the risk that the offences lack unity because the crime of aggression has not been defined and will only be defined through a subsequent amendment procedure (Article 5§2). In the meanwhile, the Court’s jurisdiction in this respect is suspended. However, aggression can hardly be defined other than in terms set by the Security Council, which alone is empowered, by virtue of the UN Charter, with the legal authority to initiate proceedings. Moreover, aggression is more a collective crime undertaken by state militaries or ruling groups, rather than a crime of identifiable individuals. Yet the Statute rules out the immunity of public agents (Article 27), while also ruling out the responsibility of legal entities. Another reason for the lack of unity within the Statute parameters regarding crimes is that a State Party can by a declaration escape the jurisdiction

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of the Court for an initial period of seven years for war crimes committed on its territory or by its nationals (Article 124). Even though this has been qualified as a transitory provision, the restriction in fact exonerates state authorities and their agents of most of the crimes they may have been accused of within the framework of conflict situations. Finally, there is a lack of certainty to the extent that crimes against humanity in particular are defined imperfectly. The approach is based on considerations of intention on the one hand, while simultaneously ascribing the massive or systematic character of such crimes a prominent place (Article 7§1). No doubt, specific examples have been provided, but they are followed by general formulations that aim to cover unforeseen situations. This is perfectly understandable. The definition of crimes against humanity in international law is, on the one hand, more the result of a progressive evolution than of lex lata; on the other hand, the imagination and means employed by torturers is expanding under conditions that are unexpected and even unforeseeable, so that it is necessary not to limit ourselves to the practices that we have already experienced. This is in some ways consistent with the image of justice pursuing crime—always lagging behind even in its definition. In addition, an amendment procedure has been provided for, and a review conference is scheduled to take place seven years after the coming into force of the present Statute (Article 123). However, the subsisting uncertainty hardly seems in conformity with the principle of nullum crimen sine lege that the Statute refers to elsewhere (Article 22). It may, among other risks, harm cooperation between the ICC and the jurisdiction of State Parties, and it detracts from their complementarity, especially when there is some degree of overlap between war crimes and crimes against humanity.

B. The Problem with Complementarity The complementarity of the ICC and national criminal courts is affirmed in the Preamble of the Statute. The same Preamble states a little earlier that ‘it is the duty of every state to exercise its criminal jurisdiction over those responsible for international crimes.’ This leads us to ask the question: is such jurisdiction really complementary, or is the jurisdiction of the ICC at best subsidiary, since the jurisdiction of states is the rule and not the exception in international law? The result is—and the text of the Statute confirms this—that the ICC has no grounds to intervene whenever national jurisdiction is exercised. Consequently, when the Court is seized of a case, it is tantamount to an admission of failure by the national jurisdiction, thus reaffirming and prolonging the failure of the state concerned. At the same time, however, in order to function, the Court needs the cooperation of such states to arrest and prosecute offenders, obtain information, gather witness accounts and all other necessary data. Chapter IX of the

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Statute (Articles 86 to 102) deals specifically with such issues. The general obligation to cooperate has been laid down (Article 86), but assistance to the Court has to be organised in accordance with national procedures (Article 88) while respecting the state’s fundamental legal principles of general application (Article 93§3). This means that international proceedings will in all probability be accompanied by national proceedings and litigation carried out in several states, with the risk that proceedings could be particularly complex, long and contentious. To take but one or two examples of problems that in practice could prove to be arduous, we could cite the problem relating to evidence, as well as the problem related to individuals. In the first instance, there is the production of documents or elements of proof, which a state has grounds to refuse should they affect ‘its national security’ (Article 93§4). Given the extensive and discretionary, if not arbitrary, recourse made to secrecy in matters of national defence in France and other countries with similar practices, one can see the extent to which such cooperation could in practice become purely optional. As for the question pertaining to individuals, there are those who enjoy official protection within their national states. In principle, immunity, whether national or international, does not prevent the ICC from exercising its jurisdiction (Article 27). In other words, a head of state or government can be prosecuted by the Court. In this, the Statute has made significant progress. There are several obstacles nonetheless, both legal and practical. First, there is the acceptance of such procedure in national law—relinquishing immunity often implies, as in France, a constitutional amendment. How many states will have the altruism to take such an action? Then, in investigating the cases that could be brought against these individuals, how will a state part with the evidence it holds when it is very likely to involve national security? Finally, the states targeted may try to undermine international prosecution by developing their own preventive procedures, which will serve in fact to exonerate those threatened by legal action. Article 17§2 authorises the Court to override such considerations, but this assumes it has the power to scrutinise and reject national legal procedures, and this power is not very compatible with assuring the state’s cooperation, which is nonetheless essential. What is to be done when a state refuses to cooperate, in other words when it does not keep its commitments? We must consider that the rules providing a remedy in general international law, which are in any event weak, are clearly inadequate. The Statute stipulates in Articles 87§7 and 112 that the Court may refer such cases to the Assembly of States Parties, the plenary body of the institution. The Assembly makes its recommendations on substantive issues by consensus, failing which, by a two-thirds majority of states present and voting. But nothing has been said about the content of the measures that could be taken to favour renewed cooperation

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or about the consequences of persistent refusal. Moreover, it does not seem that such measures are obligatory for State Parties. The Court may also refer such matters to the UN Security Council but only when the Court has been approached by the Council in the first place. Thus once again we see, though in a limited context, the role of the Council, which the Statute tried to curtail to the maximum through a formulation fundamentally different from the one that led to the establishment of special tribunals under the aegis and authority of the Council. Nonetheless, the role of the Council does not end here. The Statute may try to restrict it, making use of it in places and reducing it elsewhere, but can it really succeed?

C. An Omnipotent Security Council The very existence of the Statute shows that some are not satisfied with the Security Council’s role in the recent cases of the former Yugoslavia and Rwanda. They want international criminal prosecution to be based on a rationale other than one that is an element, a supplement or even a substitute for the maintenance of peace. The quest for autonomy and a permanent criminal court, as opposed to the exceptional and subsidiary character of the tribunals provided by the framework of the Council, is a legal policy option that we will not discuss here. Nonetheless, it raises important issues concerning judicial technique, for though the Council is no longer the basis of the existence and action of the ICC, it can still interfere with the Court’s functioning. One can clearly see here the intent to make a distinction between the Security Council’s role in justice and politics or in justice and enforcement. However, to the extent that the ultimate goal of public or even judicial action is law and order, justice cannot be completely separated from the maintenance of peace. We can see this from the fact that the Council has been given the right to apply to the Court on an equal footing with the States Parties and with the right of the Prosecutor to initiate an investigation (Article 13). However, the Court is not a UN organ if it has to be brought into relationship with the United Nations through an agreement to be concluded subsequently (Article 2). This kind of formulation exists, we know, for the International Atomic Energy Agency (IAEA), which the Council has used extensively in Iraq on the basis of Resolution 687. The Council does not have the same general obligation to cooperate as the States Parties. The Court can merely request its assistance in case a State Party refuses to cooperate when the Council has brought a case to the Court. However, such assistance could run into difficulties to the extent that three permanent members, and important ones at that, do not seem to contemplate participating in the Statute. They can thus reject the very principle of such cooperation and even oppose referrals. The question then becomes one of the decision-making procedures within the Council. Is

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referring a matter to the Court a procedural or a substantive matter? It appears to be very much a substantive matter; in any case, whenever there is any doubt, the matter must be considered as such. As for the assistance of the Council, this is unquestionably a substantive issue. It thus seems that the Council’s contribution to the Court’s action will depend for all practical purposes on the support of states that have shown their hostility to the institution and have the capacity to block that contribution. Even more delicate is the limitation that Article 16 of the Statute claims to impose on the action of the Council: this Article acknowledges that the Council has the right to suspend for a period of twelve months any investigation or prosecution of the Court, through a request sent to it on the basis of Chapter VII of the Charter; and the Council may renew the requests. This suggests the need to reconcile the requirements of the maintenance of peace with those of international justice. The former may lead to the deferment of the latter, but it cannot replace it or rule it out definitively. However, this does not seem to resolve the problem. Indeed, the Council acts solely by virtue of the UN Charter. How then can one put such a limitation on the Council, which is tantamount to indirectly revising this basic treaty, since under the terms of its Article 103, the obligations of the Council prevail over all other international commitments? Consequently, if the Council directs Member States to suspend their cooperation with the Court for a longer period, manifestly this decision will prevail over the provisions of the Statute. The Statute has thus ruled on a matter outside its domain, and in practice the observance of this restriction will depend on the good will of the Council. The Council could, if it considers it advisable, establish a special tribunal that would pre-empt the jurisdiction of the Court. Certainly, the Court is not a party to the Charter and may refuse to follow it. But the State Parties would be obliged to withdraw their support, such that the Court would have no choice but to depend on the support of NGOs, which, one might imagine, would not fail to support it by vociferously expressing their indignation. Looking at all these questions and obstacles—and this is only a sample— one cannot help wonder whether the best solution for the international prosecution of crime is not the time-tested one, namely the establishment of special tribunals by the Council. No doubt there is room for improvement, especially at the procedural level, but this still offers several incomparable advantages. Among them is the ability to articulate prevention and punishment, to avoid trivialising monstrous offences, to tailor prosecutions to deal with crimes really committed and, if need be, to act retroactively, to exercise universal jurisdiction binding on everyone and to use the coercive machinery of Chapter VII. Any jurist would delight in seeing the crimes mentioned in the Rome Statute prosecuted and their perpetrators punished. Even though there are some who would have us believe otherwise, it is not necessary in order to

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accomplish that goal to participate in the activism of NGOs, which sometimes behave as if humanitarian law were their personal property. We must endeavour to move beyond noble posturing and shallow outward displays. One of the fears associated with the Rome Statute is that it might lead in practice to generalised irresponsibility: states might not prosecute because of the existence of the International Court, and the Court might not have means to live up to expectations, while the Security Council might abandon the more than amply used special tribunals. Let us not forget that the Pinochet case clearly shows that when states assume their responsibility and exercise where possible universal criminal jurisdiction, as many states are in a position to do, there is no need for an International Criminal Court. If it must come into being, let us hope its role will be merely symbolic or residual.

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31 International Criminal Law: Between the State and International Society*

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HE EXPRESSION ‘the internationalisation of criminal law’ requires a few preliminary clarifications. It suggests, voluntarily or not, the idea of progress in international criminal law. However, when one looks at the practical aspects of the recent reforms, the idea evokes serious reservations, which we will examine in section I. One must also at the outset recall the general bases of criminal prosecution and their differences, or even their contradictions (section II). In terms of international criminal justice, recent evolutions of these reforms have led in particular to the establishment of special international criminal tribunals by the UN Security Council, then to the Rome Statute establishing an International Criminal Court (ICC). It is, however, necessary to distinguish clearly between the special tribunals and the ICC. There are numerous differences between the two types of institution, mostly working to the advantage of the special criminal tribunals. The fundamental differences in their setup results in the practical superiority of the special tribunals, which will be looked at in section III. However, the ICC and the special tribunals do have commonalities in other respects, particularly the fact that neither of these jurisdictions is a panacea, and even within the limited punitive framework that is their lot, their efficiency remains unpredictable (section IV).

* Previously published as ‘Le droit international pénal entre l’Etat et la société internationale’ in M Henzelin and R Roth (eds), Le Droit pénal à l’épreuve de l’internationalisation (Paris, LGDJ, 2002) 49–68. Because this essay was originally presented orally within the framework of a conference, notes and specialist references do not appear in the text. Regarding the issues brought up here, we will only mention as general references: L Condorelli, J-A Carrillo-Salcedo and S Sur, ‘La Cour pénale internationale en débat’ (1999) Revue générale de droit international public 7–45; Société française de droit international (ed), Le Chefitre VII de le Char des Nations Unies, Collogue de Rennes, 1994 (Paris, Pedone, 1995); S Sur, ‘Le recours à la force dans l’affaire du Kosovo et le droit international’ in S Sur (ed), The Use of Force in the Kosovo Affair and International Law (Paris, IFRI, 2000); and the recurring analyses by H Ascensio and R Maison entitled ‘L’activité des Tribunaux internationaux’ in Annuaire français de droit international.

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I. The Development of International Criminal Law: Appearance and Reality Here we can distinguish the dimensions or stages in the development of international criminal law. The significance of this body of law varies between the states and the international judicial system as a whole—and is, to say the least, ambiguous.

A. The Dimensions of the Internationalisation of Criminal Law The internationalisation in question has three dimensions, which correspond to three successive stages of development. The first, the minimal stage of internationalisation, is limited to a conventional establishment of police and judicial cooperation between states for a better application of their respective domestic criminal laws. Extradition conventions are a prime example. In such a scenario, the consent of the public authorities of other states can be required to ensure the application of domestic criminal law; but to be precise, we are still dealing with the application of domestic law— the determination of offences and punishments remains solely domestic, and extradition in fact can always be refused by the solicited state. This minimal variation on criminal law can result in a more developed internationalisation, as when the Security Council, through a decision, that is to say by means of an international, unilateral and obligatory act, orders a state to produce certain of its citizens before a foreign criminal court. This was the case years ago with regard to Libya (Resolution 731 of 21 January 1992), and in this we can see the preliminary working of what would go on to become the special international tribunals created by the Security Council. A second stage of internationalisation, which is again in the area of classic inter-statism, consists of defining the criminal offences under international rules or, at the least, providing for them, generally by means of multilateral conventions. This international determination often includes, in more or less precise terms, an obligation for state parties to establish their jurisdiction with regard to crimes or offences prosecuted in this manner. This constitutes non-institutional, normative internationalisation in the sense that punishment can only be carried out by national jurisdictions. The object is to arrive at a ubiquity of punishment for certain crimes. The ideal would be to end up with universal jurisdiction but still by means of domestic courts. This was the case for offences like slavery or piracy, which were punished in the past. This normative internationalisation is also one of the dimensions of the Rome Statute of 17 July 1998, as it directly targets a certain number of crimes with regard to which the parties must primarily establish their own jurisdiction, if they have not done so already. In passing we should note that the crimes targeted are generally serious attacks on

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humanitarian law—not human rights, as it is sometimes said by way of simplification. The third stage, which is of the most immediate interest to us and the most recent, leads to the constitution of international criminal jurisdictions, which can judge and condemn individuals in accordance with international procedures by virtue of offences resulting from international norms. This last stage represents an undeniably higher degree of internationalisation— an institutional internationalisation that brings into existence an international criminal law, above classic international criminal law and based on a coordination of domestic criminal law and procedure.

B. Going beyond Appearances However, it is necessary to go beyond an analysis that would be too concerned with appearances in order to nuance the spontaneous impression of progress in terms of international law: it may be spontaneous, but it is no longer about militant groups or public opinion movements attempting to elaborate finer points of international law but rather about vast sections of doctrine being rewritten. In appearance, the progress made in international law is indisputable. Criminal jurisdiction was until recently considered the province of sovereign states alone. Current technical legal developments, somewhat in the manner of Georges Scelle, have led to a shift from the normative to the institutional. This is ethical progress insofar as certain individual or collective behaviour was too often ignored by domestic criminal laws and escaped any organised punishment, while classic international law remained powerless. We are thus attempting to cure a multiform judicial deficiency—a lack of defined crimes, jurisdiction, interest and prosecutorial discretion. In reality, however, the remedy reveals more serious deficiencies than it provides cures. Such internationalisation cannot be seen as a complement or as the crowning point of a whole enterprise for re-establishing peace, which could be the case in another context. In actual fact, it highlights the numerous failures of the security mechanisms instituted by the law, whether it be domestic or international. It is a failure of preventive mechanisms on one hand and of correctional mechanisms on the other hand, as all security systems have a dual focus on deterrence and punishment. In fact, if a crime occurs and is prosecuted, it is because neither domestic judicial systems nor the international legal order resulting from the UN Charter was able to prevent it. If we then need to consider setting up international criminal jurisdictions, it is because the coercive mechanisms that aim to react rapidly and efficiently against attacks on international security did not function to stop them. The Security Council is particularly responsible, as its mission is to maintain or restore international peace and security, and to do this it has the widest jurisdiction and power entrusted to it under the Charter.

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The Triple Basis of Criminal Law

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C. The Result of an Accumulation of Failures An accumulation of failures regarding the enterprise of international peace and security thus leads to the creation of international criminal jurisdictions that are responsible for punishing behaviour that could not be prevented or stopped in a timely fashion. In this respect we could observe that other techniques would certainly be better adapted to protecting populations: in particular, international intervention would have the advantage of forcing a rapid end to massive, serious attacks on humanitarian law. It would be better to stop a massacre than to exhume cadavers in order to try the perpetrators. This, however, is another debate that we will not enter into here. In passing, condemning these attacks and playing the do-gooder allow us to evade any other responsibility, particularly the political responsibility that should be borne by the authorities and institutions that have not fulfilled their mission. It is merely symptomatic of a certain ideology of nonviolence, that in its name we allow atrocities to be committed and then attempt to prosecute the perpetrators, as if the virtue of a law goes hand in hand with its powerlessness. In other words, the promotion of international criminal jurisdictions seems to be compensation for a powerless international law that can only record and condemn the criminal behaviour that undermines its very foundations. It is without a doubt necessary to create jurisdictions at a certain level, but we do not really have any reason to be proud of them or to present them as a form of progress, because it would be preferable to never need them in the first place. From this point of view we must distinguish between the special international criminal tribunals instituted by the Security Council and the permanent International Criminal Court established by the Rome Statute. The former in fact retain an exceptional and ad hoc nature, serving to remedy local and temporary deficiencies, while the second places war crimes and crimes against humanity on the ordinary agenda of international society, thus trivialising them. Can the latter situation really be considered substantial progress by society and international law, half a century after Nuremberg and Tokyo? What is the signification of these jurisdictions with regard to the basis of criminal law?

II. The Triple Basis of Criminal Law The basis of criminal prosecution is composite: it always combines several distinct or even antagonistic elements, which appear in varied proportions. Let us look back to Greek etymology and to the imagery it evokes, so as to present these elements in a human and not just abstract way—in other words, with the mix of sensibility and passion that they inherently contain. One can distinguish Nemesis, the deepest yet least rational of bases;

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Themis, a more rational basis whose reason is derived from pure Raison d’Etat; and Dike–, which associates reason and values and promotes a harmony that is at once social and spiritual—in other words, justice as impulse, justice as an institution and justice as reason. Nemesis is without question the most fundamental basis of criminal law, the most ancient but also the most rudimentary. The blood of victims cries out for vengeance, fosters the anger of their loved ones and justifies violence against the perpetrators. A crime is also an assault on the world order as it was envisioned by the gods. It defies their will, and the vengeful impulse seeks to re-establish this order and balance out the crime through punishment—so much so that a vendetta calls for the killing of an innocent person to avenge the death of another innocent (a primitive principle of equivalence). This is the justification of private vengeance, the lex talionis that turns each man into his own virtual righter of wrongs as much as the mandatory sort of natural law. Cleansings, summary executions, collective liability and the prosecution of entire groups are the collective translation of Nemesis. One can even go as far as to cite the American intervention in Iraq: after September 11, someone had to be killed. The drawbacks of indulging Nemesis are well known, most notably the dangers for public peace, since such behaviour can lead to uninterrupted cycles of private violence and wars of everyone against everyone. Thus Nemesis also corresponds to a wrath of the gods, who are all victims at the end of the day. It has been the springboard for numerous international conflicts and constitutes a permanent threat to public peace. It is destructive of the social bond. Justice and peace thus risk being disassociated, and justice always carries a ferment of future violence. How could one not see the contemporary traces of this, for example, in Saddam Hussein’s trial? Themis seeks precisely to avoid such drawbacks, by giving criminal prosecution a more regular, rational and collective character. It seeks to reconcile the private reparations to which victims and their loved ones are entitled, with the maintenance of public peace. By substituting a form of prosecution that is organised and devoid of individual feelings of vengeance, by focusing on the guilty but not on those around them, a public authority—city or state—fills a double mission: protecting individuals on the one hand and safeguarding public peace on the other. It thus maintains or reestablishes the social bond. And of course, once prosecution is of a public and not of a private nature, it becomes softer, based on general rules and not on the lex talionis. Interposing the law and criminal trials between a perpetrator and his punishment means interrupting the symmetry between crime and punishment. Such is the justice of the state, in its ideal form. On the one hand, at the internal level there is no direct incentive to pursue it—hence the principle of opportunity of pursuits. But on the other hand, does there exist at the international level a sufficiently legitimate form of public authority to

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Special International Criminal Tribunals and the ICC

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handle prosecution? Therein lies one of its major problems, and one can fear that institutions which fail to preserve peace will have just as much trouble ensuring justice. The international criminal tribunals represent attempts to create an international public authority at the service of international justice and to put the latter at the service of peace. Dike– is the most spiritual and abstract form of justice, and it corresponds to the search for harmony, for a world order that would at the same time be an ideal order. This is the justice that followed Antigone, calling for a universal absolute of perfect norms, even against the city or the state. The contemporary translation is a form of natural law, the jus cogens—norms that cannot be transgressed. This is justice as an ideology, in perfect opposition to Nemesis, which is derived from impulses. It can include notions of pardon and reconciliation, but it also commands repentance and memorial obligation. It transcends vengeance in the name of superior values, whether vengeance toward an individual or a group—but it does not go to the point of forgetting; it implies inalienability and leads, for example, to the continued pursuit of old Nazis, to this day. International criminal justice is from this point of view preferable to that of states, as it can judge both states and their representatives, in the name of universal values and, in some ways, in the name of humanity. The ICC is widely recognised as an inspired project, as is the ideology of nongovernmental organisations (NGOs). In this context, one can sense a certain wariness toward state justice, its shortcomings and its compromises. Dike– can lead one to focus on trials as much as, if not more than, on the condemnation of the guilty, excluding the death penalty and rejecting the immunity of heads of state. But its ideal character cannot mask either its subjective dimension or the near impossibility of institutional support. It thus risks, in a very different way than Nemesis, to weaken the social fabric by leaving incurable wounds open. This abstract form of justice finally lacks public authority. In practice, through a detour of reason, it can only function with the cooperation of states, even though its purpose is to circumvent or even surpass them. It is thus plagued by its own limits and contradictions, as revealed by the weakened operational and structural features of the ICC.

III. Special International Criminal Tribunals and the ICC: Two Conflicting Logics It would be futile to consider the International Criminal Court as an extension and development of the special international criminal tribunals, since the former, a permanent and conventional body, does more than add an institutional dimension to what is fundamentally meant to be temporary and ad hoc. The differences between the two are more reminiscent of the classic distinction between Themis and Dike–. In a way, Themis channels the

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image of Zeus thundering, but it also evokes the Justice of the city: Justice upheld by force, or power in the service of Justice, which is imposed upon unwilling mortals. Inversely, Dike– is more evocative of the Antigone myth, which depicts Justice that is opposed to force and thus reminds us of the sacred rights of the weak. This is an expression of conscience that, if need be, arises against abuses of power; in contrast, for Themis, justice and power are one. The special criminal tribunals are created by the Security Council, a powerful international institution that is invested with widespread powers; and they are upheld by the world’s main military powers as a manifestation of their anger. They are thus an expression of Themis. The ICC, on the other hand, is established by means of a treaty based on voluntary participation and is promoted by NGOs that claim to represent the voice of humanity, both as a concept and as a value; and even though it is rejected by some of the most powerful states on the planet, it remains dedicated to transcending this official opposition and to imposing its will. It is therefore more akin to Dike–. Beyond these symbolic references, the international criminal tribunals and the ICC do not share the same context: the former implement criminal punishment of individuals as an element of restoring peace, that is to say within the framework of a general mission to restore peace and security; the latter is based on a more general and abstract idea of justice as an autonomous element of world order that exists independently of any concrete policy. According to other conceptual references, special criminal tribunals are based on an ethic of responsibility while the ICC is based on an ethic of conviction.

A. Special Criminal Tribunals and International Criminal Punishment as a Tool for Restoring Peace The notion of special international tribunals as an instrument to restore peace goes back to the historical foundation of criminal law, which is based on pubic power: substituting public punishment for private vengeance avoids the cycle of indefinite retaliation and the contagion of disorder, calming minds by means of adequate, independent, objective and impartial justice—thereby associating order with justice and creating a policed society rather than an undefined competition between individual or clan frustrations. In short, it establishes a social state instead of a natural state. This line of reasoning and historical practice has justified the reinforcement of the state and seems mutatis mutandis to have inspired the creation of special criminal tribunals by the Security Council. However, their establishment is not a step towards the formation of a super-state. After all, we could find a distant precedent for these institutions in the international police that captured Napoleon and imprisoned him at

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Saint Helene as a result of a quadrilateral convention between the conquering states; or more recently, in the unsuccessful project to judge Wilelm II after the First World War. In fact, the creation of special international tribunals is merely a manifestation of possibilities that were opened up by the UN Charter, insofar as international security remains undefined and the means of maintaining and restoring it are not laid out within precise limits. In this spirit, the Security Council has almost open-ended powers, except that it may not create permanent measures, since its role is to respond to exceptional situations. It is on this basis that the Council was able to institute special courts for the former Yugoslavia and Rwanda, by distinct and individual decisions (Resolution 827 (25 May 1993) for the former Yugoslavia; Resolution 955 (8 November 1994) for Rwanda). The tribunals were thus created as a result of unilateral decisions made by an international organisation, exercising its power to make necessary decisions with respect to the states belonging to the United Nations. Not only does the creation of such tribunals fall upon all of these states, but the criminal jurisdiction of the tribunals is binding on everyone. The universality of the jurisdiction is thus immediately established, without having to depend on the individual consent of each member or on universal negotiation; no state is allowed to exonerate itself by reservations or through unilateral auto-exclusion. Moreover, this jurisdiction is retroactive, so that the nonexistence of the court at the time the criminal acts occurred cannot be an obstacle to their being punished later. The principle of non-retroactive criminal law is not affected, as in every case the behaviour has been qualified as a crime prior to its punishment. The efficiency of the punishment is reinforced by the recourse to special, universal and mandatory jurisdictions. In this spirit of efficient criminal prosecution, international justice is supported by the Security Council’s authority, its potential coercive power and the agreement of the permanent members. The connection between power and justice is guaranteed as much as possible, as is the link between the exercise of justice and the maintenance of peace. In this respect, it is interesting to note that in Resolution 1244 (10 June 1999), which lays out the conditions for a the re-establishment of security in Kosovo, the Council requests KFOR, the security force formed by a coalition of Member States, to cooperate with the International Criminal Tribunal for the former Yugoslavia (ICTY). It is also important to note that the United States was able to put pressure on the new authorities of the Yugoslav Federation to assure that former President Slobodan Milo‰eviç would, after arrest by the local authorities, be handed over to the Tribunal to be judged there. Let us finally note that these tribunals remain exceptional; they have special and limited jurisdiction and are consequently adapted to specific crises, to which they are required to respond. We can certainly be inspired by models, and so the criminal tribunals for the former Yugoslavia and

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Rwanda have much in common. But, we can also take local situations into account and, as a result, adapt the composition or even the procedure followed by each jurisdiction. There is in all of this an element of fluidity that is well adapted to the dual legal restrictions that weigh upon these jurisdictions. On the one hand they must ensure the respect of international humanitarian law, which is a law of principles, the unity and universality of which cannot be called into question without attacking the very foundations of these jurisdictions. On the other hand, they must correspond to the law of specific situations, which means that the circumstances particular to each crisis must be taken into account, along with regional considerations and those that the Members of the Security Council are prepared to accept. In these regards, the logic of the ICC seems to be very different.

B. The ICC and International Criminal Prosecution as an Element of Autonomous Justice The Rome Statute’s formulation of international criminal prosecution as an element of autonomous justice represents a manifestation of a much weaker Dike–: ICC support from public authorities, particularly regarding its use of coercive means, continues to be very unpredictable. In a way the Statute is about taking stands rather than imposing measures—normative, declaratory stands, a denunciation of crimes left to prosecution by a universal conscience, and as such, the ICC remains a weak institution, probably a chimerical one. All effective measures must come from the Security Council, and we will see that the ICC tries to distance itself from this institution. The influence of NGOs both in the adoption of the Rome Statute and in the possible functioning of the ICC is very significant in this respect. We know that at the time of the Rome Conference they often went further than some pressure groups which remained on the sidelines; and the quasiofficial position they thereby assumed then allowed them to participate directly in the negotiations. The account by an NGO activist from a Western country is very revealing: he first observes that as humanity was not represented within the Conference, he took it upon himself to become its spokesperson—in other words, he was representing humanity. He adds that he was then able to intervene in the name of the Solomon Islands, as part of an official delegation. He thus became a proxy for the Solomon Islands—and thus a new avatar of the old ‘sacred civilising mission’ (which conjures a rather ambiguous image). Many governments seemed frozen by this ideological terrorism and paralysed by this ostentation of good feelings, widely transmitted and supported by the media. Many forgot that they were the only ones with a certain legitimacy and that their first duty was to report back to their national parliaments. It is true that NGOs were encouraged by some ‘pilot states’ and thus used in an interstate context, which is much less obsolete, in fact, than many NGOs think.

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The NGOs also see themselves as having been invested with an official role in the initiation of criminal charges, since the Court can rely on the information they provide as ‘trustworthy’ sources, in the words of the Statute. The expression makes one wonder about what kind of guarantees of independence, objectivity or impartiality can be offered by private organisations that are so opaque in terms of their composition, links, finance and means of action. They are only pressure groups, like other pressure groups, representing among other things specific conceptions, subjective perceptions and given theses. As such, they are certainly worthy of being taken into consideration, but they do not deserve to be hypostatised as our universal conscience. At the best they can be advocates, but not judges. And what would criminal justice be without advocates? But likewise, what would justice be if it were rendered only by advocates? We should note that NGOs are actually no less selective in their denunciations than states themselves. Their indignation is expressed very vehemently against some indisputably criminal behaviour, but they forget other cases that are no less condemnable—Palestine for example. What state governments gave up during the negotiation of the Rome Statute can, however, be regained in other areas, and the NGO victory may be in appearance only. The ICC remains in effect based on an interstate or intergovernmental and hence contractual logic. Without going into details here about the different components and consequences of this basic fact, we can see that it is leading to the establishment of a criminal process in a consensual framework, a formula that is laden with virtual contradictions. First, the criminal process is based on the initial participation of the states in the Statute, a participation that by definition continues to be optional (while Security Council resolutions are binding on all UN Member States). The Statute’s implementation, however, supposes concrete cooperation between interested governments, but this is again left merely to their good will (whereas the Security Council can order states to cooperate with special criminal tribunals). The ICC will furthermore remain subsidiary in any case that is subject to legal proceedings within a state justice system, and nothing guarantees that such national proceedings may not considerably delay or even pre-empt the ICC. Finally, the ICC has no retroactive jurisdiction, which is yet again a serious technical handicap when compared to special international tribunals, as its jurisdiction can only be exercised from the date of the Rome Statute. We will return to this later but can ask in passing whether this non-retroactivity is consistent with the imprescriptible and peremptory nature of the crimes targeted. The deliberate distancing of the Security Council and the suspicion with which the Statute seems to view it are likewise significant. The Council can certainly refer a matter to the ICC, but it is mainly treated as a possible obstacle to its action, to the extent that political considerations might indeed

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lead the Council to hinder or at least slow down the prosecution of certain cases. It could thus in fact offer a kind of immunity to leaders with whom the Council might hope to negotiate a return to peace—and here we find the subjacent opposition between the ethics of responsibility and the ethic of conviction. Certainly at the level of judicial technique, there is a significant risk that the Rome Statute could be inapplicable in this area. While it grants the Security Council the power to suspend ICC action on specific cases for the duration of a year, it states that such deferrals can only be renewed by the Council through new resolutions. Such attempts at limiting Council influence come up against the very foundational procedures of the Council: Article 103 establishes the precedence of the UN Charter over ‘any other international agreement’, and while the Security Council can only issue provisional measures, such measures may very well be indefinite, depending on the achievement of the objectives set out in the relevant resolutions. Hence there is nothing to prevent the Council from deciding on the basis of Chapter VII that certain ICC actions must be suspended indefinitely. Moreover, rendering the Rome Statute inoperative can also be accomplished by the Council through other means—most notably by establishing a special international criminal tribunal, which would have every right to pre-empt the jurisdiction of the ICC, which would then become a judicial shadow theatre. The attempt to distance the Security Council from the ICC process or even to use the Council in the service of the ICC thus seems destined for failure. This is all the more so because some of the permanent members of the Security Council—and not the least important ones—are hostile to the ICC, or at the least refuse to be involved with it. This does, however, underscore how far removed this concept of international criminal justice is from the obligation to restore peace in the name of abstract ideological considerations. It is more attached to proclamations, to a declaratory concept of the law than to the concrete conditions for implementing it. It can satisfy an intellectual frustration but runs a serious risk of being a Potemkin village when it comes to applying solutions. In other words, it is fine in theory but fails in practice. These observations are confirmed by the insistence on the imprescriptibility of crimes targeted. This imprescriptibility is in itself satisfying for the mind, as it is intolerable that odious criminals escape punishment. It is obviously not a question here of pleading their impunity. Imprescriptibility can moreover play a preventive role: even trials occur very late, they are nonetheless reminders of the strength of the norms sanctioned. However, there are a number of procedures that allow for adjusting the prescription of certain crimes, or at least for adapting the speed and continuity of proceedings to circumstances. Furthermore, if restoring peace and calming minds is the priority, then pardons and reconciliation processes might be no less honourable than single-minded prosecution of potentially divisive figures.

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Thus in a country like France, whose history is marked by civil and religious war as well as political revolution, and where even the twentieth century witnessed wide-scale upheaval and massive tragedies, amnesties have regularly been granted to support the peace process and to repair the national fabric. Amnesties transform the conflicts of the past into history, and if they are successful, that is to say accepted, they can take away the mortal sting of horrible crimes in the interest of a greater good. The ideology of imprescription is certainly respectable, but that of amnesty is no less so, provided that it contributes to public peace. The lessons learnt from a national past can be transposed onto an international perspective. It is healthy not to be limited by a singular logic of punishment and instead to be able to take into account specific circumstances. In certain cases there will be no real demand for prosecution but a great desire for transparency and a need for repentance, which may all be satisfied by domestic procedures of reconciliation. In other cases, the demand for prosecution will be focused on a few individuals who are particularly responsible and will become symbols of what were collective crimes, as in the case of the Tokyo and Nuremberg trials. In other contexts, there will be suspicion with regard to international jurisdiction, which may be foreign to local traditions and cultures. International criminal justice should be perceived as an instrument for the restoration of peace that can adapt to different requirements, rather than as an automatic mechanism of abstract justice that runs the risk of not being able to achieve its goal because its limitations are so obvious. In other words, at the political, judicial and practical levels, the model of special tribunals is incontestably superior.

IV. The SCTs and the ICC: An Uncertain Efficiency The comparative advantages that SCTs offer nonetheless do not suffice as a guarantee of the efficiency of international criminal justice, which in any event remains unpredictable. The efficiency in question must be defined and appreciated in relation to the objectives of international criminal justice: not only punishing odious crimes but also participating in the restoration of peace—and in the case of the ICC, clearly affirming the sanctity of universal humanitarian values by punishing any attacks on them. In relation to both the ICC and special international tribunals, however, the efficiency of these jurisdictions is subject to numerous uncertainties. The situation is clearer for special tribunals, if only because these courts are already active. They could nonetheless be improved upon, as the experience of each one could be useful for the creation of those that may be needed later. As for the ICC, its limits are for the moment less obvious, as they remain hypothetical. However, they are probably deeper than those of special international criminal tribunals; moreover, the ICC is less amendable because of its conventional nature.

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A. Justice and Special International Tribunals according to the Security Council The jurisdictions of special international criminal tribunals are clearly marked by their institutional, unilateral and coercive origins, which entail certain technical characteristics that are often imperfections. These origins also render them heavily dependent upon particular political contexts, which largely affect their functioning. Let us identify some of these technical imperfections, without claiming to be exhaustive. First up is the existence of secret warrants that allow a special international criminal tribunal to exercise jurisdiction without the parties concerned even being informed. We can understand the logic behind this: if suspects were informed, they could fleer or protect themselves so that it might be impossible to arrest them. On the other hand, this opaqueness makes a mockery of defence rights. One can easily imagine the following situation. An individual who is not aware that criminal charges have been brought against him suddenly finds his home surrounded and himself attacked by a team he cannot identify. He defends himself and is killed. The international press does not condemn the action, playing it down: an uncooperative, suspected criminal has disappeared. But at the end of the day, he could have been innocent; in any event he has been neither judged nor sentenced. In this way, secret warrants could result in virtual execution before there has been even adversarial hearing on the charges—despite the fact that the statutes of these tribunals eschew the death penalty. Another weakness of the system is the fact that special criminal tribunals—and eventually the ICC—cannot judge in absentia. We know that in absentia proceedings allow for judgement in the absence of the accused, although judgements are not enforceable before the condemned have been handed over to the law. The procedure of special tribunals, which is of Anglo–American inspiration, precludes this method of trial, and it is regrettable because a judgement in absentia at least allows an adversarial hearing of the charges against the accused in the context of a public trial, and in this respect it is far superior to secret warrants. It also unquestionably provides for the later arrest of a condemned person, who will then be allowed to defend his cause on a very clear jurisdictional basis. We could also question the impartiality of special tribunals in certain areas, since to a certain extent, their targets have been pre-designated. The most delicate question entails the potential prosecution of members of foreign intervention forces, as well as the conditions under which they testify before special tribunals. We thus know that in the Kosovo affair, the ICTY quickly set aside any accountability of the forces from NATO Member States that led the military action against the Yugoslav Republic, even though the bombing of targets that were not clearly of a military nature had led to significant civilian losses. The notion of ‘collateral damage’, widely used by NATO

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spokespersons, was not questioned. It is thus clear that these courts followed a policy of not condemning the members of the armed forces from intervening countries, even if some of them may have worried about it. With regard to the United States in particular, we know that a powerful lobby wants to subordinate any military action carried out under the banner of the Security Council to the pre-established immunity of American troops. The support of the Security Council is still required at all phases of a special tribunal, not only at the moment of creation. The strength of the special tribunals lies in the coercive support of the Council, and this is not always guaranteed in the same conditions. Before this judicial condition can be met, the countries that provide armed contingents must be ready to use them to make arrests, which could be violent or even fatal. Is public opinion in those states ready to accept the loss of life for arrests that may not finally lead to conviction? Finally, let us underscore the very high functioning costs of special international criminal tribunals, which come out of the UN budget. It is perfectly understandable that justice has a cost. But in some situations, it can seem disproportionate as compared to other needs. Thus, in the case of Rwanda, where the financial losses were huge, one could ask whether the funds might not have been put to better use for victim assistance and reconstruction, all the more so since the court functioned only briefly, and waste and even corruption occurred. This observation could be added to other considerations of judicial policy, which, beyond the functioning of special international tribunals, could raise the very question of their utility. By definition, the political context that inevitably dominates a special international tribunal is not always favourable to the functioning of the court. For different reasons and depending on their role in the process, states and public opinion can feel and express distrust towards this type of justice. In a general manner, the countries we group together under the vague but practical label of the ‘Global South’ are not at all enthusiastic, not only because the Security Council, which is the master in this field, is an institution over which they have no control. The norms promoted by special tribunals seem like Northern values or, more precisely, Western values. Is this not a means of judging the Global South in the name of Northern/Western values? Or to place the problem in another domain such as terrorism or drug trafficking, does the enterprise of special tribunals criminalise the developing world? On the other hand, this sort of international justice can seem like a luxury justice that provides known criminals with excessive guarantees and sentences that are too soft, thus allowing them to escape the rigours of local justice. Thus, in the Rwanda affair, we saw the higher-level accused taking refuge in the International Criminal Tribunal (ICTR), while underlings were far more summarily judged at the local level and shot. The two frustrations converge, however, in that they prevent this type of international justice from accomplishing its objective of promoting

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peace and restoring civil harmony—which is, in turn, an element of international security. Selective prosecution is another concern that affects the credibility of international criminal justice and, because of this, its contribution to restoring public order. For example, a state that cooperates loyally with a special criminal tribunal may find itself at a disadvantage as compared to those that try to evade them. Or a tribunal might bring proceedings against only those who followed orders and were thus certainly guilty but not responsible for decision-making, thus allowing those who were really responsible to escape. Conversely, judging and condemning a few of those who are really responsible could take on a symbolic dimension, which would could bring prosecutions to a halt and cause frustration and resentment to linger on the ground. In a certain manner, the Nuremberg and Tokyo trials, often cited as models, played this kind of a catharsis role; they allowed the world to do without a more complete condemnation of what at that point were unprecedented crimes. On a larger scale, it is not only important that justice should be just; it should appear to be just, and as Louis Renault has already written, special international criminal tribunals may appear to be a form of victor’s justice that is only invoked when a certain number of large states apply pressure to do so. The conditions under which former Yugoslavian President Milosevic was handed over to the ICTY and the decisive role played by the United States in this matter, are an illustration of this. It is a fair response to say that the impossibility of bringing proceedings against some is no justification for the impunity of others. But a perception of inequality in the application of the same norms persists, and this inequality is quick to be associated with injustice. This perception affects not only the means—the credibility of the special tribunal—but also the objective—restoring public peace, as it translates into lingering latent frustrations. What can seem to be a fundamental imbalance in the very principle of special international tribunals is probably the most difficult criticism to refute. On many other points, particularly with respect to technical matters, special tribunals can be improved—we have already said this, and it is possible to learn from past experience. The technical problems do not necessarily explain the doubts about special criminal tribunals, but they go hand in hand with a dynamic of weakness that afflicts this kind of institution. The creation of this type of court now seems to be viewed with hesitation, and other less interventionist and more diverse models are actively being sought. Some may give credit to the emergence of the ICC for this evolution in attitude, as it potentially offers a permanent jurisdiction and hence better guarantees of efficiency. But is this really the case?

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B. The ICC and Hypothetical International Criminal Justice The role of the ICC in international criminal justice is still hypothetical insofar as the Rome Statute is not yet in force and the Court is not yet exercising jurisdiction over specific crimes. We might hope for its jurisdiction to remain hypothetical, to the extent that it may signify that there are no crimes or criminals to punish, or even because states have decided to take the responsibility of prosecution upon themselves. This optimistic perspective is, however, only one hypothesis amongst others. But it shows that the role of states remains essential to all the phases of the possible functioning of the ICC. In this respect, we can distinguish three possible attitudes that do not necessarily designate three definitively fixed categories of states, as their attitudes could evolve depending on circumstances: those that reject the existence of the ICC as established by the Rome Statute; those that fully accept it; and those that accept it with a number of explicit or implicit reservations, possibly viewing it as a wholly symbolic institution. State rejection of the Statute generally entails questioning its universality as well as the jurisdiction of the ICC. We know that the Rome Statute was adopted by a large majority of states, and the opponents were a small minority. But if we weigh the voices instead of counting them, these rejections are far from insignificant. On the contrary, they seriously threaten the future of the ICC: China, India, Israel and the United States, the last of which only signed the Statute very late, in order to more effectively limit its substance later on, and then ceased to consider any scenario of participation. What the United States objects to in particular is the possibility that American citizens might be subject to the jurisdiction of the ICC. Like the Romans, they refer to a uniqueness that boils down to superiority—civis romanus sum. Considering the populations of the United States, India and China, we are talking about a large part of humanity that prefers to do without this type of jurisdiction. Hence we can ask ourselves if a convention with a universal mission has much of a future without this kind of support. Comparisons are not necessarily justified, but the precedents of the Montego Bay Convention on sea rights or, more recently, the Kyoto Protocol on the environment and of course the Comprehensive Test Ban Treaty are hardly encouraging. Certainly, in each of these examples, the American attitude has been justified by specific considerations and has led to specific consequences. But the concept of ‘à la carte multilateralism’, since put forward by the American administration, shows that the United States no longer intends to assume leadership in this matter. In any case, the ICC cannot claim to be a jurisdiction with an international vocation if it does not have the support of the United States, and even less if they actively oppose it. The precedent of the League of Nations is likewise not necessarily significant, as the institutions and the context are very different, but nonetheless the impact of the United

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States on international relations is such and their contribution to multilateralism over the last half a century has been so decisive that their attitude casts doubt on the success of the ICC. The second attitude that states may adopt vis-à-vis the ICC involves affirmation about wholeheartedly playing the ICC’s game, which they consider a decisive step forward for humanitarian law and, more broadly, for international law. Often designated ‘pilot states’, these countries include many northern European countries, along with Italy and Canada. They were particularly receptive to the views of the NGOs during the negotiation phase, and they have often carried them over to the interstate level. In this respect, the European Commission—particularly through Commissioner Emma Bonino—has also had a role to play, as if the creation of the ICC were an issue of universalising European integration mechanisms, which are by their very nature regional. The ICC might thus be expected to set off a kind of communalisation of international law. In reality, however, the Rome Statute has no such formal integration mechanisms, and its functioning relies solely on cooperation between states, and that remains largely voluntary. However, as long as the jurisdiction of the ICC is subsidiary and is only exercised if the states in question do not bring their own criminal jurisdiction into play, applying to the Court is in itself a criticism of those states— a recourse in the face of implicit failure, signifying that the states have not behaved as they should have. The existence of the Court is not only a prosthesis that is brought in to fulfil an objective gap in criminal jurisdiction but rather a substitutive mechanism, the implementation of which acknowledges the subjective faults in the functioning of the states’ judicial mechanisms. Behind each individual trial the Court organises, we will find running through it the trial of a state’s failure. The states that accept this jurisdiction have in a way interiorised their failure and accepted their defeat. It is hence not surprising that the most enthusiastic partisans of the ICC are found amongst those who consider it necessary to go beyond the notion of the state, which they see as inappropriate and outdated when faced with the new requirements of organising and managing societies that are calling out for a new form of governance. Nonetheless, no such ‘global governance’ can come into being in this way, as the Statute lacks universality. Hypothetically, if the ICC could function on these qualitatively limited bases, a certain danger could be increased: general international law could itself come under threat, due to the multiplication of independent and thus in some ways competing jurisdictions. This risk would exist in any case, as the International Court of Justice (ICJ) is not superior to either the ICC or the special international criminal tribunals, and as the decisions of the ICC and the tribunals are not subject to ICJ jurisdictional control, which might otherwise maintain the unity of international law. But the partial character of ICC jurisdiction can only reinforce such a risk. On questions as sensitive as the interpretation of customary law, or the existence, the nature and

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possible content of jus cogens, this multiplicity of independent jurisdictions could lead to contradictions in case law that would affect the credibility of international justice as a whole. It is not yet proven that special international tribunals and the ICC will have differing conceptions of humanitarian law. But it is not out of the question that the conditions leading to the creation of the ICC might also lead it to adopt activist judicial conceptions that would distance it from the current discretion of the only international jurisdiction that is really universal, the International Court of Justice. The third attitude that states may adopt vis-à-vis the ICC is equivocal, as can be seen in the case of a diverse range of states. Such equivocation consists of approving and supporting the ICC in appearance, while continuing to harbour reservations and misgivings. Those states that actively participate in international interventions—whether within a UN framework or otherwise—likely fear they may become defendants before the ICC. They can then refuse its jurisdiction over war crimes, at least for the first seven years after the entry into force of the Statute. Some states also hope that the ICC will remain only a chimerical institution, the existence of which will, at NGO insistence, occasionally provide satisfaction of principle on questions of internal politics, but merely as a wooden sword. After all, a few decades ago, a number of states voted for resolutions in the General Assembly that were favourable to the developing world, particularly in terms of restructuring economic relations, without there being any concrete consequences. Accepting pressure may be part of a mattress-like strategy—returning to its original shape after gently absorbing shocks. Cynically taking advantage of the ICC is also not outside the realm of possibility. For the states in question, this may consist of playing games with the ICC by avoiding the exercise of their own jurisdiction when they can and referring matters to the jurisdiction of the ICC instead, knowing the difficulties the ICC will encounter, bombarded as it might be with appeals and delay tactics. In this way these states will be able to elude the pressure some NGOs could put on them and will avoid being targeted by terrorist groups or subjected to conflicting pressure from other states. Some trials might look like ‘hot potatoes’, leading a state to prefer to watch its neighbours get burnt. The Pinochet affair is very instructive in this respect, as is the ease with which some who have been threatened with domestic legal proceedings have fled the territory of even states that present themselves as paragons of support for the ICC. The Court is not supported by any specific public authority; it has no policing system of its own; and pressure in favour of prosecuting certain individuals is very likely to end up buried in the sands of procedure between domestic and international criminal jurisdictions. To conclude, we would like to observe that the most efficient technique for ensuring the prosecution and punishment of criminals who violate humanitarian law in any part of the world, is the exercise of universal criminal jurisdiction by all states—or at least those states that have sufficiently

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sophisticated judicial systems, are supported by efficient police forces and would fight for the values in question. This would allow for the issuing of international arrest warrants, thereby forcing the accused, particularly if they are judged in absentia and are legally declared guilty, to no longer have access to safe asylum—instead forcing them to go into hiding for the long term or even forever. This solution is less spectacular and less mediafriendly than the creation of international criminal jurisdictions. It is less showy and more modest. But it will certainly be more efficient. It is up to states to exercise their rights and responsibilities while remaining mindful of a basic fact: the best guarantee of respect for international norms always lies in domestic law.

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32 The Responsibility to Protect and the Crisis of Humanitarian Law*

A

LLOW ME FIRST to give a brief note on the term ‘crisis’, which may seem totally inappropriate given the attention and interest humanitarian law has aroused these last few years. It nonetheless seems apposite here, from two different points of view. The first is that several of the rules established by humanitarian law are being called into question by a number of attacks, transgressions, violations and perversions of the laws, either due to a lack of knowledge about them in practice or due to the formulation of doctrines that evade their application. It is well known that when the United States unleashed its ‘Global War against Terrorism’ or GWAT, it claimed it was not bound by theses rules, but the United States is far from being alone in its position. The second point is that the very fact of being called into question has led to debates and protests, as well as attempts to reinforce the effectiveness of the rules. As always, every crisis has both a positive and a negative dimension, and the same holds true in the case of humanitarian law. If we wanted to attempt a quick review of this dual dimension here, we could begin with the observation that considerable progress has visibly been made in humanitarian law in the last few years—though these recent advances have come up against some real roadblocks. Consequently, we could raise a question about the ways in which this law could be made more effective. And so we would be entering the realm of legal policy here rather than that of the technical analysis of norms and procedures. Let us also specify that in this cursive presentation, we are dealing in the sphere of armed conflicts and crises, which are deliberate and organised attacks on humanitarian law, and not that of natural disasters, as they belong to a different category—more an issue of capacity than political will.

* Previously published as ‘La crise du droit humanitaire’, La Responsabilité de protéger: Colloque de Nanterre de la Société Française pour le Droit International (SFDI) 2007 (Paris, Pedone, 2008).

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I. Visible Progress These recent advances correspond to a dynamic phase of humanitarian law, which has been highly visible these last few decades. However, this has largely been a matter of media attention, more normative in nature than practical. Let us take five examples involving, respectively, nongovernmental organisations (NGOs), normative development, judicial responses, operations responses and the Evans–Sahnoun Report on the ‘Responsibility to Protect’. The first one has to do with the growing condemnation of serious failings by NGOs, in particular the response they elicit in the media and public opinion, especially in the West. Humanitarian NGOs have unquestionably played a positive role here, though inadequate on its own. But these NGOs are at least living up to their role by raising alarms and creating awareness, although they may tend to focus only on certain regions or situations. A second example regards the normative development of humanitarian law, for which the International Court of Justice is largely responsible. We are aware of the contribution its jurisprudence has made over the last few decades—by nature dispersed but convergent. Humanitarian law, as recalled by the Advisory Opinion on the use of nuclear weapons of 8 July 1996, must be considered as a unique set of norms, taken from different sources but constituting a single body; the same Opinion observes that these norms have taken on a peremptory character. In the past, in the Barcelona Traction Decree of 5 February 1970, the Court emphasised the common interest of all states in respecting them. Thus, the Court contributed effectively to consolidating a normative set of rules, including obligations that have been reinforced. Some judicial responses to violations lead to the constitution of special criminal jurisdictions established by the Security Council, based on Chapter VII and supported by its authority, or more recently by jurisdictions established by agreement between the United Nations and the states concerned. The International Criminal Court was established along the same lines. Henceforth, individuals can be the subject of criminal proceedings before international jurisdictions, either in substitution of a state’s ordinary jurisdiction or as a supplement to it. Normative consolidation therefore goes hand in hand with repressive procedures that constitute an innovation in relation to conventional international law. There exist some attempts at operational response as well—whether concerning the case of the former Yugoslavia (with Bosnia and then Kosovo), of Rwanda or of other situations affecting Africa, in particular Darfur. These cases all involved systematic and massive attacks on humanitarian law that warranted international interventions, whether authorised or not by the Security Council, and with or without the use of force. But such actions continue to be attempts, because as we know full well, we are still quite far from reaching our goal.

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The Evans–Sahnoun Report on the ‘Responsibility to Protect’ is a sort of synthesis of all the above. Drafted following the intervention in Kosovo, it examines all aspects of these issues and attempts to provide an overall response—from prevention to coercive action and reconstruction. Among others, it has the merit of asserting that the responsibility to protect is the primary obligation of the state concerned, and if the latter fails to fulfil it, then it is in violation of its international obligations, as they stem from its sovereignty. Giving positive content to sovereignty in the light of international law—in other words recognising obligations that the state must respect and be answerable for, rather than seeing the state only in the light of the principles of liberty and immunity—is satisfying in itself, even if it is not an innovation, because international sovereignty has always borne a dual dimension—that of liberty and responsibility.

II. Real Obstacles The remarkable progress achieved cannot, however, mask the fact that humanitarian law has met just as spectacular road blocks. Let us once again look at a few significant examples. Firstly, the normative development we have just noted is largely declaratory—even the Evans–Sahnoun Report itself, in conclusion to its highly balanced and prudent proposals, recommends the adoption of a declaratory resolution by the General Assembly in the matter. Hence, we unfortunately find the same traditional misuse of declaratory law in international law—a misuse that is in fact mere intellectual interpretation at some levels, a paper barrier that regrettably fails to withstand the pressure of facts in the long term. Everyone can recall these kinds of interpretations by the General Assembly, most of which have sunk into merciful oblivion. They may be satisfying—for a more or less short duration—from a doctrinal viewpoint but can only lead to disappointment on a practical level. Indeed, as has been written elsewhere, legal idealism leads to depression. Next are the constant doubts and controversies on the universality, unity and content of humanitarian law. To be effective or at least applicable in an optimum way, it should be possible to reduce or summarise humanitarian law into a few prohibitions, simple prescriptions and imperatives, understandable by all, especially those who must apply it on the ground, leaving no doubts as to the conduct to be adopted. Nothing can come out of reinforcing its authority if its content remains open to doubt. This law may have been formulated by jurists, but it has not been formulated for jurists—it is meant above all for combatants. Thus, it is a complex, erudite law in reality, narrow in interpretation, subject to restrictions and to contestation. The American attitude in this regard is quite significant: it has not taken refuge behind statements of principle; it has simply found loopholes—no doubt questionable but allowing it prima facie to set aside humanitarian law prescriptions, especially where they seemed to apply.

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Furthermore, there has been significant resistance to international criminal jurisdictions, largely on the part of states whose nationals will likely be prosecuted. We have all seen such resistance taking shape, even empirically. Although they may have achieved rather mixed results, the first International Criminal Tribunals established by the Security Council were relatively easy to set up, given the novelty of the practice. The more recent ones, however, were more difficult to establish; their legal basis has been less solid; and their effective functioning remains open to doubt. The International Criminal Court offers only a false solution to these difficulties. Its lack of universality and the legal war that the United States has relentlessly waged against it have called its actual effectiveness seriously into question, not to speak of the absence of coercive means at its disposal. Can one conceive of criminal justice without public force? The fact that the accused cannot be sentenced in abstentia is another weakness of such jurisdictions. Sentencing in absentia could present many advantages for the legality and effectiveness of criminal repression and the ostracism of those sentenced, thereby condemning them to either accept a public trial or live in hiding, which is in itself a sentence. There is another, more fundamental criticism in principle to be made against this criminal and repressive approach of humanitarian law, which is the instrument of these jurisdictions. When they are in fact called upon to give their judgement, by definition it is already too late. The goal of humanitarian law is above all to protect individuals and groups, not to punish the guilty for violations. In any event, that is what the notion of peremptory norms should mean. Consequently, the responsibility to protect should above all lead to preventive or operational actions, including coercive actions. Humanitarian law is mainly a law of protection; it is only secondarily a repressive and compensatory law. By reversing these priorities, as the Security Council and then the Conference of Rome have done, humanitarian law itself has been violated in a way. How does condemning their killers matter to victims? Or compensating their heirs? Or even compensating the victims themselves, if we have not been able to protect them? To be more precise, the encouragement of the repressive approach goes hand in hand with a persistent doctrinal and practical refusal to recognise a right to humanitarian intervention—at least to interventions involving the recourse to armed coercion and those undertaken in the absence of authorisation by either the Security Council or the General Assembly. The case of Kosovo could certainly have been an opportunity to formulate a doctrine on humanitarian intervention for the future, as it was legitimised on this basis by a number of the actors concerned. But the opportunity was missed, despite several appeals along these lines. Instead, intervening parties chose to stress the fact that it was an exception not to be repeated. In practice, we know that humanitarian or humane intervention only makes sense in the absence of authorisation by the Security Council: if such authorisation has been granted, we enter the realm of peacekeeping or peace-making actions,

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which fall under Chapter VII, and the concept of humanitarian intervention is pointless. We also know that only state coalitions have the means to conduct such operations, if they involve the recourse to armed force. As for the Evans-Sahnoun Report, it stops on the brink of acknowledging such a possibility. The hidden idea behind it is that such interventions are pointless or dangerous—pointless if the Council decides in their favour, as they then have enough foundation in the Charter to make it unnecessary to have recourse to these concepts; dangerous if states take recourse to them, whether alone or in coalition, as their motivations and objectives would be doubtful and furthermore because they seem to undermine Article 2§4 on the prohibition of taking recourse to force in international relations. The recommendation to the Security Council’s permanent Member States to relinquish their veto right in similar situations is purely illusory, if not hypocritical. Everyone knows perfectly well that none of them will relinquish their veto rights—if only because if they did, they would then be unable to justify the very principle of veto itself in other situations in which international peace and security are involved. It is both inconceivable and impractical to cut up the veto into different slices.

III. Taking the High Road Is it possible to overcome these obstacles by taking the high road? Two possibilities deserve to be explored. The first concerns states that are directly involved in violations of humanitarian rights. The second concerns the other states and their obligation to protect. These two possibilities involve no changes to existing laws but rather changes in their founding practices and doctrines. With regard to states that seriously fail in their duty to protect their own population, in other words, states that are the source of atrocities aimed at their people or groups of their people, they should be made to face the consequences of their failure, complicity or action. Once it is agreed that the duty of protection is a component of their state sovereignty, the latter is necessarily affected by such failings. The notion of a failed state, highly fashionable in the sphere of international relations, could be given legal weight. By definition, a failed state is incapable of abiding by its international obligations, through the absence or malfunction of its public authorities. To remedy the situation, the help of other states or international organisations, or even other ad hoc international forums, may be necessary, and this should not be subject to opposition. In the event that there is opposition by a state, or if it is behind breaches of humanitarian law, it would no longer fulfil the conditions of being a Member State that are laid down by the UN Charter. It must be borne in mind that the capacity of being a Member is open to states that are peaceful, respect the obligations imposed by the Charter and are able and disposed

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to fulfil them, in the eyes of the Organisation. The rights and privileges of Members who no longer fulfil these conditions should be suspended, in conformity with the Charter. The immunities granted to their leaders could be lifted, and measures such as banning their travel and freezing their foreign assets could be taken. Moreover, in such an event it would be appropriate to recognise universal criminal jurisdiction, allowing the leaders or officials identified to be put on trial before the public, with the guaranties of legal defence. As for the other states that intend to fulfil their responsibility to protect, from the outside, it may be held that international law is not opposed to their coercive intervention. Two options may be envisaged. On the one hand, the failure of a state could be acknowledged as constituting grounds enough to justify the coercive intervention by coalitions of states, insofar as the Security Council does not take action. On the other, it must be borne in mind that the prohibition of any recourse to force in international relations is not as general and absolute as the doctrine often seems to imply. Apart from self-defence and other instances of recourse to force that have been authorised by the Security Council—both of which are explicit limitations on the prohibition—recourse to force is more generally limited by the very text of Article 2§4: it states that the threat or use of force is prohibited either against the territorial integrity or political independence of any state, or in any other manner that is incompatible with the purposes and principles of the United Nations. Humanitarian intervention is not contrary to any of these prohibitions, as it is not aimed at undermining a state’s territorial integrity (though integrity should not be mistaken for inviolability) nor its political independence— which is not protected by the Charter to enable a state to massacre its people. Furthermore, it is not contrary to any of the United Nation’s other aims and principles. It cannot therefore be considered as one of the implicit hypotheses of the right to recourse to armed force in the Charter. This kind of state intervention obviously should not be unilateral but collective, and should remain subject to the limitations contained in the Evans–Sahnoun Report, which gives a very useful analysis of the conditions for initiating such intervention as well as of the conduct of operations and finally, with regard to the restoration of full sovereignty to the concerned state. For want of the acceptance of such a doctrine, we face a two-fold risk: the first is seeing a rise in the number of operations of this kind, beyond all legal justification, and even more surely ruining the credibility of international law—the Kosovo case has unfortunately been the prototype that likely led to the idea of unilateral intervention in Iraq; the second risk involves interminable delays (such as in Darfur) and the increasing powerlessness of international society when faced with open violations of humanitarian law.

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Index

Acts classification, 162 fact/norm, 162 see also Norms legal acts, 161, 162 see also Law power to engender other acts, 161 relative power, 162, 163 totalising value, 162 unilateral acts, 152–4, 161, 162 see also Unilateral acts Armed conflict see Legality of armed conflict Armed force decolonisation, 424 disarmament, 398 see also Disarmament humanitarian intervention coercive intervention, 425 genocide, 425 international responsibility, 425 massacres, 425 recognition, 425 international relations, 422 international security, 200, 217 lawful use, 423, 424 legal issues, 418 non-State entities, 424 preventive war doctrine, 459, 460, 463, 465 see also Preventive war doctrine problematic use, 424–26 recourse to armed force, 217, 417, 418, 440 see also Legality of armed conflict State power, 11, 12 terrorism, 424, 428 see also Terrorism UN Charter, 422–24, 426–28 UN Security Council authorisation, 423, 426, 427 direct/indirect use, 426 excessive use of force, 428 multinational security forces, 428 occupying forces, 428

self-defence, 427 unilateral use, 418, 422, 428, 440 US actions, 440, 441, 459 ‘Axis of Evil’ security threats, 395, 396 Balance-of-power systems see also International security agglomeration/balance, 234 alliances, 227 balance by dissolution, 234 contradictions, 227, 231–33 diplomacy, 227 elements, 227–9 equilibrium, 228–30 hegemony, 233, 234 see also Hegemony importance, 226 inequality among States, 227 international peace, 226 inter-State rivalry, 227, 228 maintenance of peace, 228 neutrality, 228 nuclear deterrence, 234 power relations, 228, 229 plurality of political entities, 227 recourse to war, 232, 233 regulating element, 234 sovereign States, 227 stability/mobility, 229, 231, 232 strategic balance, 234 Central Intelligence Agency (CIA) covert actions, 104 Changing fashions (International law) see also International law; New international law equality of nations, 191 European Convention on Human Rights, 192 humanitarian law, 193 international criminal law, 191, 193 see also International criminal law international social law, 191 law of protection, 193

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512

Index

Changing fashions (International law) (cont.): ‘North Wind’ conception abolition of death penalty, 197 criminal jurisdiction, 198 crisis/concept management, 196 developed countries, 196 disarmament, 197 European values, 197, 198 executioner’s metaphor, 197 focus on individuals, 196 judicial activity, 198 jus cogens, 198, 199 problem of survival, 197 reconciliation, 197 notions of fashion constraint, 191 ethics, 190 expectations, 199 function of fashion, 192 juridical insignificance, 192 legal developments, 199 liberation, 191 media-driven norms, 190 philosophy of the will, 191 prevailing mood, 192 rational action, 191 right to development, 193 ‘South Wind’ conception compensatory inequality, 194 decolonisation, 193 jus cogens, 195, 196 methods, 195, 196 multilateralism, 195 new international order, 193, 194 principles, 194, 195 CNN influence, 102 Collective security Acheson Plan, 247, 453 alliances, 238, 246, 247 collective defence, 247 common interest, 237 common security, 249 compromise, 238 definition, 237 difficulties, 244, 246 distortions, 246–48 documentary dimension, 133 external limitations, 237 flexible nature, 238 future developments, 248, 249 historical evolution, 238 hybrid system, 240, 241 improved collective security, 240 international guarantees, 237 inter-Statism, 241 League of Nations, 237, 239, 240

see also League of Nations legal commitments, 242 legal/political construction, 242–44 NATO, 247 non-coercive military actions, 246 objective, 237, 238, 240–42 organisational dimension, 133 peace between States, 237 peace-keeping operations, 246–48 political considerations, 237 regional problems, 248, 249 regional/universal articulation, 249 self-defence, 242, 243 see also Self-defence structuring, 237 superstatism, 241 territorial integrity, 242 UN Charter, 42, 131, 132, 237 see also UN Charter UN Security Council, 241–44 United Nations, 237, 238, 240–8 see also United Nations use of force, 242 Utopian dimension, 133 Warsaw Pact, 247 Comprehensive Nuclear-Test-BanTreaty (CTBT) counter-proliferation, 379, 380 resumption of nuclear tests, 375, 377, 379 US initiative, 375 US rejection ambiguity, 380–3 background, 374, 375 chauvinism, 375, 376 consequences, 376–8 context, 376 doctrinal element, 378–80 instrumental opportunism, 382 international security, 377 interpretation, 375 isolationism, 377, 383 muted response, 376 possible outcomes, 378, 379 preventive multilateralism, 380–2 repressive unilateralism, 380–2 significance, 377 US Senate, 375–7, 383 Counter-terrorism measures Hariri Tribunal, 336 Security Council Resolution (1368), 335, 336 see also Security Council Resolution (1368) Security Council Resolution (1373), 335, 336, 405 see also Security Council Resolution (1373)

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Index Security Council Resolution (1540), 314, 315, 326, 329, 335, 336 see also Security Council Resolution (1540) security responses, 258, 272, 273, 276, 277, 292, 335, 336 self-defence, 274 Court of Justice of the European Communities (CECJ) interpretation, 181, 182, 188 Crimes against humanity, 469, 481 Custom see International custom Cyprus territorial organisation/zones, 91 Disarmament see also Weapons of mass destruction (WMDs) control mechanisms, 386 development, 385 disarmament enterprise agreements/instruments, 386, 387 characteristics, 387 China, 402 climate of mistrust, 396, 404 coercive disarmament, 387, 388 co-operative security, 396 effectiveness of existing mechanisms, 391–3 equality of States, 397 erosion, 391–7 European approach, 397, 399–401 failed States, 403 growing concerns, 390, 391, 397 Helsinki process, 396 India, 402, 404, 407, 411–13 international debate, 386 international relations, 397 international treaties, 387–9 Iran, 408, 409, 411, 412 Iraq, 408, 410 Israel, 398, 407, 411, 413 Japan, 402 legal obligations, 387 limited results, 387 mutual confidence, 396 neutral/non-aligned countries, 397 North Korea, 408, 409, 411, 412 nuclear deterrence, 387 Pakistan, 404, 407, 411–13 political neutrality, 386 rogue States, 398, 402–4 Russia, 402 security threats, 393–6 soft disarmament, 387, 389, 390 South Africa, 407, 412 State responsibility, 387

513

Third World, 402, 403 trade liberalisation, 397 US approach, 397–9 verification, 388 doctrinal approach conceptual unity, 364, 365 differing notions/practices, 365, 369 disarmament concept, 369 doctrinal systematisation, 364 European approach conciliation, 401 EU legal competence, 400 European values, 399, 400 international relations, 399, 400 military capacity, 400 multilateralism, 401 national interests, 401 nuclear capability, 401 security guarantee, 400 security independence, 400 expert opinions, 353 Geneva Disarmament Conference, 353 International Court of Justice, 353 international disarmament law absence of principles, 365, 368, 369 arms control, 369, 385, 387, 397 collective instruments, 365, 366 formulation processes, 365, 368 heterogeneity, 365–9 international customary law, 365, 367 international organisations, 365, 367 international security law, 365, 369–72 legal techniques, 355, 373 principles, 355 sources of law, 365–7 treaties, 365, 366 UN General Assembly, 367, 369, 370, 372 international instruments/treaties adaptation/modification, 360, 361 application, 355, 358–61 definition of stated terms, 356, 357 development, 355 dispute settlement, 360 drafting, 355 formulation, 355– 8 legal concerns, 355, 359 links between treaties, 357, 358 non-compliance, 355 reactions, 363, 364 source of law, 365, 366 verification, 358–60, 369 violations, 361–63 weapons classification, 356, 357 international law assessment, 354, 372, 373 contributions, 372 individual/collective measures, 354, 355

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514

Index

Disarmament (cont.): international law (cont.): influence, 353, 354 international legal regulations, 354 predictability, 354, 372 primary obligations, 354 reactions, 354, 372 secondary obligations, 354 security, 354 specific conditions, 354 State behaviour, 354, 372 violations, 354, 372 international security arms control, 371, 372 balance of power, 370 differing notions, 369, 370 diplomatic approach, 404 individual security, 370 international obligations, 369 international trust, 404 multilateral treaties, 371 nuclear deterrence, 370–2 peacekeeping 131, 132 prevention of conflict, 385, 386 State inequality, 371 State responsibility, 397 total disarmament, 371 types of disarmament, 371 UN Charter 131 international treaties bilateral treaties, 388 legal obligations, 387 multilateral treaties, 388 precarious nature, 389 regional treaties, 388 revocation, 389 treaty-based disarmament, 353–5, 365 inter-State agreements, 385 jurists’ role, 353, 355 legal approach, 353–5, 373 peacekeeping, 131, 132 pragmatic approach, 355–64 security threats ‘Axis of Evil’, 395, 396 global awareness, 394 government-led threats, 393, 394 non-governmental threats, 394–6 non-State actors, 395, 397 organised crime, 394, 395 terrorist networks, 394–6 transnational trafficking, 394 UN Charter, 131 US approach ad hoc coalitions, 398, 399 armed force, 398 asymmetric policy, 398 freedom from constraints, 398, 399 Israeli connection, 398

mobile asymmetry, 398, 399 target of threats, 398 unilateral action, 398 Dispute settlement disarmament, 360 see also Disarmament International Court of Justice, 353 UN Charter, 212, 256 East Timor international intervention, 441 restoration of peace, 442 UN position, 442 US role, 442 Economic domination anti-authority movement, 49 capitalism, 48 cultural dimension, 48 currency control, 47, 48 exchange mechanisms, 47 export restrictions, 51 free market, 48 globalisation, 48, 49 marketisation of exchanges, 48 monetarism, 48 political economy, 48 privatisation, 47 public policies, 48 sanctions, 51 security, 47 transnationalisation, 47, 49 US decline, 46, 47, 57 Economic relations bilateral agreement, 132 Bretton Woods Agreements, 132 documentary dimension, 132 GATT, 132 international law, 132 organisational dimension, 132 regional solutions, 132 Utopian dimension, 132 Empire see also Imperialism autistic nature, 76, 77 ‘call to empire’, 222 colonialism, 77, 223, 224 concept, 76 contradictions, 223 domination distinguished, 75, 76 domination principle, 219 forms of empire, 222, 223 historical perspective, 77, 78 Holy Roma Empire, 223 ideological perspective, 77 imperfection, 77, 78 international law, 76, 77 Napoleonic Empire, 223

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Index Ottoman Empire, 223, 229 process, 76 reality, 76, 77 Roman Empire, 34, 37, 222, 234 Soviet Union, 223, 224 structural contradictions, 77 territorial perspective, 77, 222 Europe see also European model of influence; European Union colonialism, 31 European construction, 35 European identity, 30, 91 political upheaval, 30 European model of influence EU Membership, 87 European Constitution, 84, 86 European construction, 35 external dimension ACP States, 87 circles of influence, 86–8 co-operation, 88 humanitarian law, 86 liberal imperialism, 86 multilateralism, 88 neighbourhood policy, 87 peacekeeping, 88, 121 restraint, 88 UN Membership, 87, 88 internal divisions, 83, 84 international security, 84 legal order Charter of Fundamental Rights, 85 common legal heritage, 86 Community law, 85 European Convention of Human Rights, 85 hyper-regulation, 85 international law, 84, 85 judicial role, 85, 86 jurisdictional order, 86 legitimacy principle, 89, 90 limitations international relations, 90 military weakness, 89, 120 political legitimacy, 89 UK resistance, 90 political elements, 84 UK perceptions, 84, 90 UN Charter, 84 US hegemony, contrasted, 83, 88, 92 see also US hegemony European Union currency, 91 disarmament, 399–401 see also Disarmament economic/political regrouping, 95 economic/social development, 402

515

EU Membership, 87 humanitarian law, 402 international criminal justice, 402 liberal imperialism, 92 military weakness, 120 monetary union, 91 neighbourhood policy, 87 peacekeeping, 88, 121 Schengen Agreement, 91 UK attitude, 90, 91 Failed States civil society, 110 collapsed States, 114 common response, 109 concept, 109 corruption/criminality, 114, 115 crisis management, 118 definition, 109 disappearance of States, 112, 113 disarmament, 403 see also Disarmament distinctions besieged States, 114 rogue States, 114 ‘soft States’, 113, 114 effects human rights abuses, 114, 115 instability, 109, 113 international crime, 115 international repercussions, 114, 115 security issues, 109, 115 terrorism, 115 WMD proliferation, 115 ethnic conflicts, 114 examples, 110, 111 failure levels, 113 federalist views, 111 financial decline, 113 internal conflicts, 114 intervention authorisation, 119 civilian missions, 120 humanitarian intervention, 119 international supervision, 121 legitimacy, 119 military action, 119, 120 overt violence, 118 predatory intervention, 122 maximalist approach, 111, 112 prevention civil liberties, 117 collective freedoms, 117 co-ordinated action, 122 democratic governance, 117 democratic principles, 117, 118 difficulties, 115 early detection, 115, 116, 121

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516

Index

Failed States (cont.): prevention (cont.): equality, 117 EU Membership, 118 information-gathering, 116 international organisations, 116 international response, 122 NGO involvement, 116, 117 policy responses, 117 preferred option, 115 prompt action, 121 resource issues, 122 public authorities, 110 public services, 114 realistic approach, 111, 112–15 reconstruction, 112, 118, 120, 121 restructuring, 112 security issues, 266, 267 State apparatus, 110 structural deficiency, 111, 112 transnationalism, 111 Federalism consensual association, 219 European Community structure, 226 harmony in diversity, 224 international federalism, 95 international security, 216 limits of intergovernmental organisations, 225 USSR failure, 225 Force armed force, 11 see also Armed force dictatorial regimes, 10 liberal regimes, 10 meaning, 9 State power, distinguished, 8–10 General Assembly see UN General Assembly Genocide international criminal law, 425, 469 Global governance demands of globalisation, 206 formation of law, 206 international regulation, 206 State role, 206 US hegemony, 62 see also US hegemony Globalisation Americanisation, 49 anti-globalisation activists, 111 collapse of Communism, 102 definition, 101, 102 domination, 102 effects, 48, 49, 95, 96 efficiency, 102 homogeneity, 102

international federalism, 95 international relations, 102 limits, 49 multi-polar approach, 103 unattainable goal, 102–4 unilateral dimension, 108 universality, 103, 104 US hegemony, 101, 104–8 see also US hegemony Hegemony see also US hegemony altruism, 36 definition, 38 differing interpretations, 34 domination, 34, 36, 38 economic power, 36 equilibrium, 46 foreign policy, 36, 38, 40 Franco-German influence, 35 hegemonic power, 37 identification, 38 imperialism, distinguished, 34–6 see also Imperialism implied conditions, 35, 36 leadership, distinguished, 34–8, 52 see also Leadership military dimension, 37 motivation, 34 partnership, 36 primus inter pares, 36 regionalisation, 44 responsibility, 36 sanctions, 38 submissiveness, 36, 37 supremacy, 37, 38 UN Security Council influence, 35 unequal capabilities, 34 Human rights abuses, 114, 115 access to justice, 474 citizen’s rights, distinguished, 474 equality of treatment, 474 failed States, 114, 115 free movement, 474 human dignity, 473 humanitarian law, distinguished, 437, 438 individual rights, 438 jus cogens, 198 obligations, 213 personal rights, 474 protection, 473–5 right to life, 473 Rome Statute, 474 see also Rome Statute violations, 212, 473 Humanitarian intervention adequacy, 438

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Index authorisation, 438 coalitions, 509 coercive intervention, 425, 434 collective intervention, 510 conditions/characteristics, 437–9 delays, 510 directed against adversaries, 434 discretionary nature, 438 doctrine, 432, 434, 435, 439 Evans-Sahnoun Report, 510 exceptional nature, 508 genocide, 425 genuine aggressions, 437 humanitarian assistance, distinguished, 434 humanitarian law, 508 initiation, 510 international responsibility, 425 justification, 438, 439 Kosovo conflict, 419, 425, 426 see also Kosovo conflict legality, 440 massacres, 425 peace-making actions, 508 political independence, 510 positive law, 434, 435 recognition, 425, 451, 452, 457 recourse to armed force, 451–3, 457, 510 sovereignty issues, 436 State practice, 436, 437, 440 territorial integrity, 510 UN Charter, 425, 435, 436, 510 UN Security Council, 435–8, 447, 448, 504 unilateral interventions, 510 use of force, 434, 435 Humanitarian law application, 433 armed conflicts, 505 citizen’s rights, 475 civilian casualties, 433 coercive action, 508 ‘crisis’ state, 505 declaratory development, 507 European Union, 402 Evans-Sahnoun Report, 506, 507, 509, 510 guarantee, 475 humans rights, distinguished, 437, 438 humanitarian intervention, 119, 212, 508 see also Humanitarian intervention immunity from prosecution, 510 international/universal criminal jurisdictions, 503, 504, 508 judicial responses, 506 jus cogens, 198 jus in bello, 430, 433 means of combat, 417, 424, 430, 432, 433

517

NGO role, 506 normative development, 506, 507 operational responses, 506, 508 preventive action, 508 progress, 505–7 prohibitions, 475 protection, 475, 508, 509, 510 reinforcement, 505 Rome Statute, 474, 475 see also Rome Statute State failures, 509, 510 State responsibility, 509, 510 unity, 507 universal nature, 438, 494, 507 US attitude, 505, 507 use of nuclear weapons, 424 violations, 423, 425, 426, 434, 451, 475, 503, 505, 508–10 ‘War against Terror’, 505 Imperialism see also Empire colonialism, 34, 35, 38 direct domination, 34, 35 European model of influence see European model of influence hegemony, distinguished, 34–6 see also Hegemony; US hegemony interpretation, 34 inter-State relations, 75, 78, 82 political domination, 37 subjection, 37 US pre-eminence, 75 International Court of Justice (ICJ) advisory opinions, 183 applicable law, 166, 167, 169 armed conflict, 417 customary law, 166, 167, 185 dispute settlement, 353 jurisprudence, 169, 172 legal interpretation, 185 relative authority, 166 role, 142, 143 International Criminal Court amnesties, 497 competing jurisdictions, 502, 503 complementarity evidence, 482 immunity form prosecution, 482 international crimes, 481 international proceedings, 482 national criminal courts, 481 national jurisdiction, 481 national proceedings, 482 State co-operation, 481, 482 context of failure elementary justice, 472 human rights protection, 473–5

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518

Index

International Criminal Court (cont.): context of failure (cont.): international institutions, 472 international security, 472 NGO’s role, 471 peacekeeping systems, 472, 473, 477 State incapacity, 472, 473 contractual logic, 495 contradictory case law, 503 crimes definition, 480, 481 targeted crimes, 496 efficiency, 486, 497 equal treatment, 480 establishment, 405, 492 European attitude, 88, 89 humanitarian law, 502, 503 see also Humanitarian law humanitarian values, 497 immunity from prosecution, 88, 496 individual responsibility, 471 initiating proceedings, 471 international crimes, 469 international criminal justice, 501 International Criminal Tribunals, distinguished, 486, 489, 491, 492, 494 judgment in absentia, 508 jurisdiction, 88, 469–71, 478–81, 495, 500–3 media influence, 478, 479 national proceedings, 495, 502 NGO influence/involvement, 492, 494, 495, 502 novel character, 470 perception of justice, 478 powers, 480 Pre-trial Chamber, 478 procedure, 480 prosecutions, 471, 473, 478, 497 public authority support, 494 punishment, 473, 497 restoration of peace, 496, 497 Rome Statute, 405, 486, 487, 489, 494 see also Rome Statute State response equivocation, 503 participation/support, 495, 501, 502 reactions, 477 rejection, 501, 508 US attitude, 88, 479, 508 subsidiary nature, 495, 502 suspension of actions, 496 symbolic/residual role, 485 transparency, 497 UN Security Council relationship application procedure, 483, 484 co-operation, 483, 484, 495, 496

decision-making procedures, 483 deferrals, 496 limitations, 484 referrals, 495, 496 universality, 478–80, 508 utility, 477 weakness, 494 International criminal law amendment procedure, 481 atrocities, 489 crime of aggression, 469, 480 crimes against humanity, 469, 481 evolution, 470 genocide, 469 hijacking, 470 individual responsibility, 471 international norms, 470 internationalisation coercive mechanisms, 488 correctional mechanisms, 488 development, 486–8 institutional internationalisation, 488 preventive mechanisms, 488 progress, 488, 486 technical legal developments, 488 internationalism extradition, 487 humanitarian law, 488, 489, 494 international criminal jurisdictions, 488 international rules, 487 minimal stage, 487 multilateral conventions, 487 normative internationalism, 487 police and judicial co-operation, 487 jurisdiction, 470, 488, 489 piracy, 470 prosecutions bases, 486, 488–92 dik, 490, 491, 492, 494 jus cogens, 491 natural law, 491 nemesis, 489, 490, 491 State justice, 490 themis, 489, 490, 491, 492 vengeance, 491, 492 punishment, 487, 489 Rome Statute, 486, 487, 489 see also Rome Statute slavery, 470 terrorism, 470 see also Terrorism war crimes, 469, 481 International Criminal Tribunals ad hoc nature, 469, 483 comparative advantages, 497 creation, 204, 276, 277, 302, 305, 344, 484, 485, 486, 492, 493, 508 efficiency, 486, 493, 497

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Index exceptional nature, 493 Former Yugoslavia (ITCY), 493, 498 fundamental imbalance, 500 historical precedent, 492, 493 impartiality, 498 International Criminal Court, distinguished, 486, 489, 491, 492, 494 jurisdiction, 493, 498 justice, 500 legal basis, 508 North/South divide, 499 origins, 469, 498 political contexts, 498, 499 procedure, 498 proceedings in absentia, 498 public opinion, 499 punishment of individuals, 492 restoration of peace, 492 Rwanda (ITCR), 493, 494, 499 secret warrants, 498 selective prosecutions, 500 State responsibility, 205 technical imperfections, 498, 500 UN Security Council Resolutions, 493 support, 499 weaknesses, 498–500 International custom a posteriori, 176, 177 a priori, 176, 177 codification, 170, 171 customary law, 143, 144, 165–7 customary norms, 167, 168 customary ‘process’, 167, 168, 170, 171, 173–7 custom/jurisprudence link, 166, 169 defining characteristic, 166 derogation, 144 disarmament, 365, 367 see also Disarmament doctrinal issues, 167, 173 domestic milieu, contrasted, 165, 166 existence of rules, 168 explicit declarations, 170 flexibility, 176 general practice, 174, 176 hypothetical rules, 168 generality, 169 generator of norms, 165 good faith, 144 imperialism, 174 international law, 166, 173 international legal system, 173 interpretation, 174, 185 see also Interpretation invisible custom, 168, 169 judge-made law, 169 jus cogens, 144, 145

519

legal authority, 168 legal orders, 165 negotiation process, 175, 176 norm creation, 167, 177 normative empiricism, 176 obligatory force, 173 omnipresence, 171, 172 opinio juris, 174, 175 origins, 165, 173 pacta sunt servanda, 144 parasitic nature, 172 positive law, 166 recognition of rules, 169 recording, 170, 171 regional customs, 169 relationship to time, 173 scope, 167 sovereignty, 143 State adherence, 175 State practice, 143 subjectivism, 174 subjects of law consent, 175–7 will, 173, 174 treaties, 171, 172 voluntarism, 173, 174 International law see also Changing fashions (International law); New international law common practice, 190 decision-making process, 189 decline, 189 diversity, 158, 159 domains, 190 economic relations, 132 empire, 76, 77 European influence, 84, 85 fundamentals, 173 influence, 189 international custom, 166, 173, 190 see also International custom international security, 131 interpretation, 178 see also Interpretation nationalist international law, 80 NGO’s role, 189, 190 peacekeeping, 131 positive law, 173 precautionary principle, 207 resistance, 82, 83 subjects of international law, 133, 134, 142, 158, 173 usage, 190 Utopian dimension, 126, 131–3 see also Utopian dimension International legal norms contradictions, 140

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520

Index

International legal norms (cont.): doctrinal systematisation, 139, 140 domestic legal order, 139, 150 evolution of norms legal authority, 155, 156 progressive growth, 155 scope of norms, 155, 156 homogeneity diversity of international law 158, 159 engagement of States, 157, 158 inter-State society, 157–60 NGO’s influence, 159 subjects of international law, 158 international norms, 150 internationalist approach, 139, 140 inter-Stateness, 157, 159, 160 Kelsen’s normative pyramid, 139 mobility of norms dissolution/reformulation of rules, 152, 157 domestic legislation, 151, 152 evolution of norms, 154–6 international norms, 151, 152 modification of norms, 151, 153 unilateral acts, 152–4 multiplicity, 160 positive law, 139, 146, 149 relativity of legal authority conflicting rules, 148 degree of legal force, 145, 146 intensity of norms, 146 judicial decisions, 149, 150 jus cogens, 146–8 norms of common authority, 147–9 norms of limited authority, 149–50 norms of reinforced authority, 146, 147 peremptory norms, 147 political accords, 149 resolutions of international organisations, 149 State responsibility, 147, 148 third party acts, 147 vices du consentement, 146, 147 relativity of norms approximation, 145 custom, 143, 144 customary law, 143 defining principle, 141 degree of legal force, 145, 146 derivative acts, 142 examples, 142 formation of law, 145 formulation, 145 general principles of law, 142 generality, distinguished, 141 homogeneity of norms, 145 interpretation, 141, 142 jus cogens, 144, 145

resolutions of international organisations, 142 sovereignty, 143 subjects of international law, 142 systematisation, 145 treaties, 142, 144 unilateral State actions, 143, 144 unilateral acts see Unilateral acts voluntarism, 157, 158 International legal system see International legal norms; Norms; Utopian dimension International organisations external international law, 182 interpretative capacity, 181, 182 legal instruments, 181 International relations common interest, 3 cynicism, 296–8 disarmament, 397, 399, 400 see also Disarmament European influence, 90 globalisation, 102 see also Globalisation idealism, 296–8 inter-State relations, 3, 28, 32 rationality, 3 realism, 296–8 State-centred analysis, 29 State power, 20 see also State power transnational character, 29 US hegemony, 28–30, 39, 56, 59, 62, 102–4, 374 see also US hegemony Utopian dimension, 135 see also Utopian dimension International security see also Collective security; Peace; Peacekeeping arms control, 131, 132 anti-terrorism measures, 258 balance-of-power systems see Balance-of-power systems comprehensive regulation, 264 corrective approach, 263 developing countries, 257 disarmament, 131, 132, 263, 369–72, 385, 386, 397 see also Disarmament documentary dimension, 131 European foreign policy, 264 European influence, 84, 257 human security, 264 institutional co-operation, 257, 262 integrated security, 264, 265 international co-operation, 257

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Index international law, 131 inter-State security, 264 legal approach, 131, 132 mafia networks, 262, 263 minority movements, 263 NATO, 247, 257 natural/secure borders contradictions, 235, 236 geopolitics, 234 limited application, 235 notion, 234–6 NGO’s role, 262, 263, 269, 270 normative minimalism, 264 notion of security ‘culture of peace’, 215 extended concept, 215 ‘human security’, 215 non-military elements, 215 psychological dimension, 214 response to violence, 216 security as perception, 21 systematic dimension, 214 threat/risk distinction, 215 organisational development, 131 peacekeeping missions, 264, 265 preventive approach, 263 see also Preventive war doctrine restoration, 493 security as system ambiguity, 217 balance of power, 216, 217, 219 collective security, 216, 217 competing systems, 214 contradictions, 217–9 contradictory systems, 214 correction, 217 deterrence, 217 empire, 216 federalism, 216 hegemony, 216 notion of security, 214–16 nuclear deterrence, 216 overview, 218, 219 plurality of systems, 216, 217 prevention, 217 principle of agglomeration, 217, 219 recourse to armed force, 217 security requirements confidence-building measures, 259, 260 independent research centres, 260, 21 international problems, 259, 260 international relations, 259–61 mutual confidence, 259, 260 security spheres diversification of partners, 262–3 hard security, 256, 257, 261, 262, 271–3 notion of security, 261

521

soft security, 256, 257, 261, 262, 265, 270, 271 widening spheres, 261, 262, 264 security threats ‘Axis of Evil’, 395, 396 global awareness, 394 government-led threats, 393, 394 non-governmental threats, 394–6 non-State actors, 395, 397 organised crime, 394, 395 terrorist networks, 394–6 transnational trafficking, 394 State behaviour, 264 systems of agglomeration see Systems of agglomeration terrorist groups, 262, 263 transnational companies, 263 UN Charter, 493 UN response, 265–9 see also UN security responses UN Resolutions, 258 UN Security Council see UN Security Council universality, 257, 258 Utopian dimension, 131, 132 see also Utopian dimension Warsaw Pact, 247, 257 Interpretation Community law, 179 Court of Justice of the European Communities (CECJ), 181, 183, 188 equality of interpretations, 179 extension of interpretation application of rules, 184 competing methods, 179–84, 184 control over interpretation, 184 flexibility of general norms, 184, 185 international custom, 185 interpretative construction, 184 legal reasoning, 184, 187 motivation, 187 non-written law, 185 positivity of law, 184, 186 rationalisation of law, 184, 186–8 written law, 185 international law, 178 interpretative capacity concerted interpretation, 179, 182, 183 international organisations, 181, 182 jurisdictional interpretation, 183, 184 States, 179–82 meanings, 179 objective interpretation, 178 process, 179 result, 179 State agreement, 178 subjective interpretation, 178 treaties, 180, 182, 185

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522

Index

Interpretation (cont.): UN Charter, 181, 182 Inter-Stateness internationalism, 157, 160 limitations, 159, 160 Iraq see also Iraq conflict (1991); Iraq invasion/occupation (2003) armed force, 311, 312 bombardment, 308 disarmament, 309 see also Disarmament nuclear non-proliferation, 408, 410 regime change, 308 satellite surveillance, 308 weapons inspection, 308–10 Iraq conflict (1991) annexation of Kuwait, 418 coercive disarmament, 418 UN Security Council control, 419 legal issues, 419 legal policy, 419 responsibilities, 419 US Congressional authority, 461 US-led coalition, 418 Iraq invasion/occupation (2003) climate of distrust, 420 disarmament, 421 see also Disarmament illegality, 422 international relations, 420 preventive warfare, 458, 460 see also Preventive war doctrine terrorist links, 421 UN Security Council response, 421, 422, 427 unilateral use of force, 428 US Congressional support, 461 weapons inspection, 421 weapons of mass destruction, 421, 460 Isolationism US hegemony, 33, 34, 51, 78, 107 see also US hegemony Jus cogens common jurisdiction, 169 generality, 144, 145 holistic approach, 145 human rights, 198 humanitarian law, 198 international legal norms, 144–8 see also International legal norms State engagement, 157 UN Resolutions, 155 uncertainties, 145 unilateral acts, 145

Kosovo conflict analysis coercive intervention, 444 juridical context, 444 operational approach, 444 reconstruction of peace, 444, 447 armed coercion, 419 humanitarian intervention, 419, 425, 426, 431, 434–9 see also Humanitarian intervention impartiality, 456 implementation register civil peace, 450 civil society, 450 coexistence of communities, 450 criteria for success, 450 democratic principles, 450 Eurocorps, 449 freedom of expression, 450 KFOR multinational force, 449 NGO involvement, 449 potential failure, 450 public freedom, 450 resumption of conflict, 450 return of refugees, 449 Serbian exodus, 449 Special Representative, 449 UN Security Council involvement, 449 institutional register European Union, 448 NATO, 448 Organisation for Security and Cooperation in Europe, 448 UN Security Council, 448, 449 United Nations, 448 interim administration, 419 international criminal law, 419, 445 international law, 444, 445, 447 international legality, 419 international responsibility, 419 KFOR multinational force, 419, 428, 449, 456, 457, 493 legal deconstruction, 451 legal justifications, 419 media register humanitarian causes, 445 international criminal law, 445 just war, 445, 446 NATO intervention aerial bombing, 433 ambiguous motives, 439 apparent irregularity, 431–4 change of norms, 431 civilian casualties, 433 coalition, 454 coherent doctrine, 439 collateral damage, 498, 499

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Index collective action, 441 collective security, 441 conformity to prevailing norms, 431 democratic procedures, 429 ethical considerations, 430, 431 exceptional circumstances, 440 exemplary nature, 434, 439, 440 ICJ ruling, 430, 433, 439, 440, 446,. 454, 455 individual State action, 432 international law, 455, 457 international legality, 430, 440, 446 international responsibility, 454 International Tribunals, 430 juridical problems, 430 jus ad bellum, 430, 446 jus in bello, 430, 433, 446 justification, 432, 454, 457 legal concerns, 429, 443 legitimacy, 429, 434, 446 means of combat, 432, 433 media treatment, 429 military success, 440, 442 NATO Declaration, 419 propaganda, 429 public authorities, 429 public debate, 443 public opinion, 429 recourse to armed force, 431, 433 singular behaviour, 431 UN role, 442 uncertain results, 440 US attitudes, 441 NATO/Member States relationship legal perceptions, 455 levels of transmutation, 454 NATO governments/public opinion, 454 NATO/Yugoslav Republic, 454, 455 relations between Members, 454 superficial unity, 454 negative impressions, 457 neutrality, 456 permanent solution, 447, 449 political register ad hoc coalition, 446 international humanitarian law, 447 motivation, 446 NATO action, 447 NATO Members, 446 sovereignty, 447, 448 UN Security Council authorisation, 447 recourse to armed force absence of justification, 451 conditions, 451, 452 extension of right, 452, 453 freedom of action, 452

523

general uncertainty, 452, 453 humanitarian intervention, 451–3, 457 material uncertainty, 453 moral benefit, 451, 452 political independence, 451 restrictions, 452 self-defence, 451 territorial integrity, 451, 455 UN Charter, 451 UN Security Council authorisation, 451 undetermined reasons, 452 unilateral right, 452 restoration of peace, 451 Serbian militia, 419 sovereignty issues, 436, 447, 448 UN Interim Administration Mission (UNMIK), 456 UN Security Council authorisation, 457 control, 419, 420, 427 influence, 455, 456 Law see also Acts; Norms doctrinal construction, 161 ideological approach, 164 jurisdiction, 164 procedure, 164 renewable acts, 164 system of acts, 161 theoretical approach, 164 unilateral acts, 161, 162 Leadership benefits, 383 coalitions, 35, 36 collective action, 51 collective interests, 35, 36 dominating power, 35 hegemony, distinguished,34–8, 52 see also Hegemony; US hegemony redistribution, 38 League of Nations armed conflict, 418 equal security, 239 failure, 240 model of power, 79 mutual security, 239 preventative alliance, 239 weaknesses, 239 Legality of armed conflict see also Armed force ICJ rulings, 417 international law, 417, 418 Iraq conflict (1991) see Iraq conflict (1991) jus ad bellum, 417, 424, 430 jus in bello, 417, 424, 430

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524

Index

Legality of armed conflict (cont.): Kosovo conflict see Kosovo conflict League of Nations, 418 legal policy, 417 legal recourse, 417, 418 norm/practice, 417 September 11 attacks, 418, 420, 428, 458 see also September 11 attacks State practice, 417, 422 UN Charter, 417, 418 UN Security Council, 417, 418, 422 unilateral armed action, 422, 428 Marshall Plan model of power, 79 Monroe Doctrine model of power, 78 New international law see also Changing fashions (International law) application of law coercive measures, 204 penetration of domestic law, 204 verification, 203 application of norms, 204 armed force, 200 constituent elements, 199–202 criminalisation of international law, 204, 205 democratised norms, 201, 202 diversification of law, 206, 207 diversified norms, 201 enhanced norms, 200, 201 environmental protection, 203 evaluation, 202–6 extension of norms, 203 formulation of law, 206, 207 fundamental unity, 207 global governance, 206 see also Global governance hierarchy of norms, 203 innovative themes, 199 International Law Commission, 205 human rights, 203 see also Human rights humanitarian law, 201 see also Humanitarian law international obligations, 202, 203 international regulation, 200 legal authority, 207 legal effectiveness, 200, 204 legal procedures, 207 legal values, 207 NGO’s role, 201, 202, 205, 206 precautionary principle, 207 proliferation of jurisdictions, 204

role of individuals, 205, 206 sovereignty, 202 techniques of recognition, 204 transparency of State behaviour, 200, 203 Non-governmental organisations (NGOs) accountability, 270 consultation, 270 failed States, 116, 117 humanitarian actions, 269 humanitarian law, 506 ideological groups, 475 influence, 159, 471, 475–8, 485 international security, 269, 270 see also International security multilateralism, 475 operational groups, 269, 475 parallel diplomacy, 475 pressure groups, 269 recognition, 270 role, 62–4, 189, 190, 201, 202, 205, 206 Rome Conference, 476 Rome Statute, 477 see also Rome Statute scrutiny, 270 Norms see also International legal norms application, 127 constitutional norms, 163, 164 creation, 167, 177 customary norms, 167, 168 see also International custom democratic principles, 130 documentary dimension, 131, 132 domestic legal order, 130 elements of legal reasoning, 161 essence of law, 163 extension of norms, 203 hierarchy of norms, 203 ideological dimension, 129 ignorance of rules, 128 international legal system, 130 legal existence, 163 legal reasoning, 163, 164 normative dimension, 127, 128 norms/external data, 128 norms/reality, 128 organisational dimension, 129, 131, 132 rule of law, 127 social relations, 127 Utopian dimension, 127, 131, 132 violations, 127 North American Free Trade Agreement function, 41 North Atlantic Treaty Organisation (NATO) collective security, 247, 257 function, 41, 45

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Index intervention, 45, 429–34, 439–43, 446, 454, 455, 457 see also Kosovo conflict model of power, 79 Nuclear non-proliferation see also Nuclear Non-Proliferation Treaty (NPT) acceptable/non-acceptable proliferation, 412 arms control, 405, 406 confidence-building, 414 general assessment, 405 India, 407, 411–13 internal measures, 414 international security, 407, 414 inter-State relations, 405 Iran, 408, 409, 411, 412 Iraq, 408, 410 Israel, 407, 411, 413 legitimate proliferation, 413, 414 motives for proliferation, 413 national interests, 412 non-nuclear weapons States (NNWS), 407, 409–12, 414 North Korea, 408, 409, 411, 412 nuclear capability, 407 nuclear terrorism, 405 nuclear weapons States (NWS), 407, 409–12, 414 Pakistan, 407, 411–13 preventive multilateralism, 406 preventive regimes, 414 public proliferation process, 412, 413 South Africa, 407, 412 WMD Free Zone, 414 Nuclear Non-Proliferation Treaty (NPT) acquisition of weapons, 408 arms control, 405, 406 coercive measures, 409, 410 context, 406 declining confidence, 407, 409, 412 enforcement mechanisms, 408, 409, 410 legal obligations, 409 main objective, 406 NTP Review Conference, 405, 406 nuclear energy/peaceful purposes, 409 preventive influence, 407, 409, 411, 412 State inequality/imbalance, 410, 411 terrorist networks, 408 uranium enrichment, 409 weakening consensus, 406, 407 Nuclear weapons see also Comprehensive Nuclear-TestBan Treaty (CTBT); Nuclear NonProliferation Treaty (NPT) arms control, 252

525

deployment, 253 deterrence doctrine, 42, 43, 216, 234, 252–54, 370–2, 387 development, 252 disarmament, 252 see also Disarmament non-nuclear weapons States (NNWS), 407, 409–12, 414 non-proliferation see Nuclear non-proliferation nuclear capability, 407 nuclear weapons States (NWS), 407, 409–12, 414 political dimension, 254 proliferation, 252, 254, 386 self-defence, 423, 424 US capability, 42, 51, 105 Opinio juris international custom, 174, 175 Pacta sunt servanda international custom, 144 see also International custom Peace desire for peace, 211 disarmament, 213, 214 see also Disarmament dispute resolution, 212 human rights obligations, 213 violations, 212 humanitarian interventions, 212 humanitarian law, 214 international peace and security, 212, 241, 244, 256–58, 261, 282, 291, 292, 422, 424, 436, 488, 492 justifiable violence, 212 legitimate use of force, 211 ordered international society, 211, 212 organising principle, 211 restoration of peace, 492, 496, 497 UN Charter, 211, 212 use of threats/force, 212 value of peace, 211–14 Peacekeeping arms control, 131, 132 disarmament, 131, 132 documentary dimension, 131 European initiatives, 88, 121 international law, 131 legal approach, 131, 132 organisational dimension, 131 regional initiatives, 44 Security Council, 44 UN missions, 212, 218, 264, 265, 277, 278, 289, 290, 300, 302

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526

Index

Peacekeeping (cont.): Utopian dimension, 131, 132 see also Utopian dimension Power see State power Precautionary principle international law, 207 Preventive war doctrine armed force, 459, 460, 463, 465 collective security, 465 international law, 460, 461, 465 international rules, 460, 461 Iraq conflict (1991), 461 justifications, 460 precedence of domestic law international legal relations, 461 monism, 461 practical consequences, 460 sovereignty, 461 US position, 460, 461 self-defence collective organisations, 465 preventive, 464 State actions, 460 UN Charter amendment, 463 contrary customs, 463 jus cogens, 463 national interests, 462 obsolescence, 462, 463 recourse to armed force, 463 self-defence, 463, 464 State practice, 462, 463 substitution, 460 unilateral force, 462 UN Security Council, 464 US unilateralism armed force, 459 international conventions, 458 international decision-making process, 458, 459 legitimate preventive defence, 459 national security, 458 UN Security Council decisions, 458, 459 US Congressional support, 459 ‘War against Terror’, 458, 459, 461, 505 variations, 460 Proliferation Security Initiative ship inspections, 329, 330 significance, 320, 329 Recourse to armed force see also Legality of armed conflict armed force, 217, 417, 4128, 440 see also Armed force extension of right, 452, 453

freedom of action, 452 Kosovo conflict, 431, 433, 451–3, 457 see also Kosovo conflict humanitarian intervention, 451–3, 457, 510 international security, 217 justification, 451 moral benefit, 451, 452 political independence, 451 recourse to war, 232, 233 restrictions, 452 self-defence, 451 see also Self-defence territorial integrity, 451, 455 UN Charter, 451, 463 UN Security Council, 295, 298, 302, 451 uncertainty, 452, 453 undetermined reasons, 452 unilateral right, 452 Regionalisation hegemony, 44 security issues, 44, 45 UN Security Council, 269 US hegemony conflict management, 45 hegemony, 44, 105 peacekeeping, 44 pre-existing alliances, 45 regional coalitions, 44, 45 regional threats, 45, 46 risk evaluation, 46 security issues, 44, 45 strategic balance, 46 Rogue States disarmament, 398, 402–4 see also Disarmament failed States, distinguished, 114 threat to security, 58, 59, 67, 80, 103 Rome Statute see also International Criminal Court adoption, 469 autonomous justice, 494 context, 471 formulation, 471 human rights, 474 humanitarian law, 474, 475 implementation, 495 integration mechanisms, 502 international criminal law, 486, 487, 489 see also International criminal law international prosecutions, 484, 485 legal technicalities, 480 NGO influence/role, 477, 494, 495 normative/declaratory stands, 494 normative internationalism, 487 normative unity, 480 State co-operation, 495, 502 State failures, 471

(Zh) Sur index_(%) 234x156 Monograph 21/09/2010 11:49 Page 527

Index State jurisdiction, 487 universality, 502 Security see also Collective security; International security economic domination, 47 see also Economic domination regionalisation, 44, 45 rogue States, 58, 59, 67, 80 terrorist threat, 63 UN Charter, 42 Security Council see UN Security Council Security Council Resolution (1368) acts of aggression, 337 adoption, 335, 336 anti-terrorist response, 336 delegation of responsibility, 337, 338 doctrinal controversy armed aggression, 341 armed attack, 340, 342 implementation, 342, 343 non-State aggression, 341, 342 notion of aggression, 340–2 proportionality, 342 State-led attack, 340 terrorist acts, 339, 342 individual/collective self-defence, 335, 336, 337 legitimate collective defence, 338, 339 renunciation of control, 337, 338 Resolution (1373), distinguished, 343 Security Council Resolution (1373) adoption, 335, 336, 345 anti-terrorism measures, 335, 336, 405, 420, 424 attack planning, 345 coercive civil measures, 335 comprehensive programme, 343–5 compulsory program, 345–7 criminal competences, 344, 345 decision-making provisions, 345, 346 follow-up mechanism, 348 freezing of assets, 346 internal legal systems, 346 internal measures, 345 international co-operation, 345 legal co-operation, 345 legal principle, 346, 347 monitoring/surveillance system, 343, 345, 348, 349 non-military program, 344, 345 permanent nature of measures, 347 policing measures, 345 political basis, 344 reporting requirements, 345, 348 Resolution (1368), distinguished, 343

527

Resolution (1540), distinguished, 349 self-defence, 347 September 11 attacks, 344, 349 supervised program, 348 terrorist cells, 345 terrorist financing, 345 terrorist measures, 336 transnational organised crime, 345 Security Council Resolution (1441) adoption, 307 drafting process, 307 failure of second Resolution, 311 French attitudes, 307 incomplete implementation, 307, 310–12 intentions agreement on substance, 308, 309 agreement to seek new Resolution. 308, 309 debate surrounding second resolution, 308–10 legal analysis, 307 unilateral armed force, 311 unilateral ultimatum, 311, 312 weapons inspection regime, 309, 310 Security Council Resolution (1540) adoption, 313, 335, 336 ambiguities, 350 compromise, 315 context, 314, 316 coercive measures, 336, 410 counter-terrorism measures, 314, 315, 326, 329, 336, 424 criticisms, 325, 326 disarmament, 315 implicit agenda, 315 instrument autonomous obligations, 321–3 Chapter VII authority, 321, 348 complementary effect, 323, 324 internal measures, 321 legal implications, 321 matrix effect, 324, 325 normative powers, 322, 349 State obligations, 323 international co-operation, 314 international measures, 349 intervention arms limitation, 331 international relations, 331 intervention mechanism, 331 UN Security Council, 331, 332 monitoring systems, 313, 314 national fears, 349 national measures, 349 negotiations articulations of positions, 317 Chinese view, 318 discussion forums, 317

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528

Index

Security Council Resolution (1540) (cont.): negotiations (cont.): EU Member States, 318 level of discussion, 317 multiplicity of authorities, 317–9 national fears, 320, 322 non-permanent members, 319 normative triangle, 316, 321–5 period of negotiations, 315, 316, 319, 320, 349 permanent members, 350 political mediation, 317, 318 Russian view, 318, 350 segmented multilateralism, 317–21 stages of negotiations, 319–21 State obligations, 316 UN Security Council competence, 319, 320 Western Permanent Members (P3), 318 potential, 333, 334 prevention measures, 313 Proliferation Security Initiative, 320, 329, 330 relationship to multilateral conventions, 321–4, 350 Resolution (1373), distinguished, 349 State obligations, 313, 314, 323 structure, 313 terrorist acts, 313, 329 threats to peace/security, 313 transparency, 332, 333 US pressure, 350 weapons of mass destruction (WMDs), 313–15, 323, 324, 326–8, 332, 336, 350 see also Weapons of mass destruction (WMDs) Security responses see UN security responses Self-defence anti-terrorist measures, 274 armed aggression, 273, 420, 423 armed attack, 302 armed force, 316 corrective action, 274 immediate threat, 423 imminent aggression, 423 individual/collective self-defence, 335–7, 422, 423, 452, 465 legitimate self-defence, 274, 287, 291, 292, 302, 316, 337, 344, 349, 420, 428, 463, 464 necessity, 421 nuclear weapons, 423, 424 occupation of territory, 424 origin of aggression, 424

permanent measures, 424 preventive, 273, 423, 464 proportionality, 423 State action, 273 UN Charter, 273, 274, 422, 423, 426, 427, 435, 439, 463, 464 unilateral, 464 September 11 attacks Afghanistan intervention, 420, 458 anti-terrorist measures, 420 effects, 28, 29, 63, 67, 75, 112, 268, 272–4, 277 international security threat hyper-terrorism, 66, 79 non-State actors, 395, 397 regional threats, 45, 46 legality of armed conflict, 418 legitimate self-defence, 420 NATO response, 420 Taliban involvement, 420 UN response, 292, 294, 301, 308, 335, 344, 349, 420 unilateral use of force, 428 US hegemony, 45, 46, 50, 53, 56, 58, 61, 63, 64 see also US hegemony US-led coalition, 420 Sovereignty domestic law, 461 internal affairs, 436 international legal norm, 143 limitation, 436 new international law, 202 sovereign authority, 220 sovereign equality, 157 State sovereignty, 99, 100, 179, 180, 266, 267, 447, 448 State power armed forces, 12 autonomy intangibility, 11, 12 self-regulation, 12, 13 capacity analysis, 5–6 capacity to do, 5 capacity to harm, 8 capacity to make someone do, 5–6, 8 capacity to prevent someone from doing, 6, 8 capacity to refuse to do, 6 legislative power, 5 potential for action, 5 range/gradation, 6–7 components, 5–8, 11, 12 constitutional theory determined function, 9 executive branch, 9 instituted organs, 9

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Index judiciary, 9 local authorities, 9 particular authority, 9 pre-established jurisdiction, 9 contradictory nature, 4 criticisms, 3, 4 decline declining power, 3 lack of power, 25, 26 new power configurations, 24, 25 perceptions of decline, 24, 25 relative decline, 25 State metamorphoses, 26, 27 transfer of power, 26, 27 withdrawal, 26 defining characteristic, 4 definition, 4 distinctions authority, 8, 9 decision, 8, 9 force, 8–10 violence, 8, 10, 11 dynamic nature decolonisation, 16 deterioration, 15, 16 development, 14, 15 disorganisation, 16, 17 external contradictions, 15, 16 global development, 15 internal contradictions, 15 inter-State rivalries, 14, 15 military factors, 13 modification, 13, 14 territorial control, 13 expressions of power ascending power, 20 conspicuousness, 18, 19 contradictory expressions, 17 detrimental effects, 19 disinformation, 19 dissimulation, 19 domination without counteraction, 19, 20 dual dimension, 17 economy of means, 19 humanitarian action, 20 images of power, 17, 18 irrational use, 20 overrated power, 17 predation, 20 reality of power, 17, 18 regulation/deregulation, 20 retribution, 20 secrecy, 18 security/stability, 19, 22 support for actions, 19 growth, 4 historical developments, 13

529

interpretation, 4 inter-State relations, 3, 17, 20 management of power absence of State control, 21 civil pacification, 21 international relations, 20 lack of regulation, 22 legal frameworks 22 market economies, 22 military force, 21 non-security related factors, 21, 22 responsibility, 21 rises in power, 23, 24 State legitimacy, 22 State monopoly, 22 territorial control, 22 material means, 12 models of power League of Nations, 79 Marshall Plan, 79 military influence, 79 Monroe Doctrine, 78 NATO, 79 Strategic Defence Initiative, 79 United Nations, 79 nuclear power, 12 see also Nuclear power perceptions of power, 17, 18 political/cultural/technological influence, 12 power over minds, 7, 8 power over things, 7, 8 power over values, 7, 8 power politics, 3 regulatory dimension, 4 territorial dimension, 12 use of force, 3 violence, 3, 8. 10, 11 State supremacy degree of supremacy, 29 European/US comparisons, 30–2 meaning of supremacy, 30 universal supremacy, 32–4 United States, 30–4 see also US hegemony States see also Globalisation; State power agglomeration of States, 219, 220 character/nature domestic society, 94 dual role, 94 international institution, 94 legal concept, 94 political body, 94 customary practice, 143 see also International custom decision-making process, 189 empire, 219 see also Empire

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530

Index

States (cont.): equality, 143, 157 failed States see Failed States federalism, 219 see also Federalism fragmentation citizenship, 98 collapse of Communism, 96, 98, 112 decolonisation, 96, 97, 112, 113 dissociation from existing States, 96, 97 effects, 95, 96 ethnic States, 98 immigration issues, 98 plural allegiances, 98 qualitative level, 97 quantitative level, 96, 97 regroupings, 97 shared loyalties, 98 human resources, 99 internal functioning, 219 internal homogeneity, 94 international commitments, 179 international federalism, 95 international law, 94 international responsibility, 99 international role, 219, 220 interpretative capacity, 179–81 legitimacy, 95 metamorphosis, 93 national identity, 94 necessity, 99 new model external subordination, 100 free movement, 100 human rights, 100 humanitarian rights, 100 international order, 99 judicial role, 100 legal dimension, 99 minority rights, 100 state of law, 99 normative capacity, 99, 100 privatisation, 99 proliferation, 112 recognition, 133 regulatory authority, 94 self-defence, 273 see also Self-defence sovereignty see Sovereignty specificity of States, 143 States on trial, 93–6 status, 95, 133, 143 territoriality, 94 unilateralism, 143, 144, 152 Utopian dimension, 133

Strategic Defence Initiative model of power, 79 Systems of agglomeration see also International security agglomeration by cohesion, 234 alliances, 222 coalitions, 221 empire, 219, 222–4, 234 see also Empire federalism, 219, 222, 224–6 see also Federalism hegemony, 221, 234 see also Hegemony intellectual bases, 221 meaning, 219 practical tendencies, 221 States agglomeration of States, 219, 220 internal functioning, 219 international role, 219, 220 sovereignty, 220 Universal State, 219–21 variants, 221, 222 Terrorism armed force, 424, 428 anti-terrorism measures institutional action, 459 legal reactions, 459 multilateralism, 459 UN response, 314, 315, 326, 329 unilateralism, 459 financing, 345 hyper-terrorism, 66, 79, 250 justification, 211 nuclear terrorism, 405 origins, 65 radical opposition, 66 security threats, 394–6 State involvement, 66 terrorist acts, 313, 329, 339, 342 terrorist cells, 345 terrorist networks, 336, 394–6, 408 terrorist threat, 63 ‘War against Terror’, 458, 459, 461, 505 Treaties international custom, 171, 172 international legal norms, 142, 144 interpretation, 180, 182, 185 UN Charter amendment, 463 armed aggression, 422 armed reprisals, 423 collective security, 42, 131, 132, 237 contrary customs, 463 co-operation, 266

(Zh) Sur index_(%) 234x156 Monograph 21/09/2010 11:49 Page 531

Index cultural/economic/social co-operation, 257, 261 disarmament, 131 dispute resolution, 212, 256 durability, 258 economic relations, 132 forward-looking nature, 256 general restriction, 422 ‘human security’, 215 humanitarian intervention, 425 illegal uses, 423 implementation, 257 influence, 84 international peace and security, 212, 241, 244, 256–58, 261, 282, 291, 292, 422, 424, 436 international treaty, 241 interpretation, 181, 182 jus cogens, 463 national interests, 462 non-intervention principle, 262 obsolescence, 462, 463 protection, 266 recourse to armed force, 463 restrictive conception, 422 revision, 256, 258 self-defence, 273, 422, 423, 426, 427, 435, 439, 463, 464 see also Self-defence specific restrictions, 422 State obligations, 266, 267 State practice, 462, 463 State sovereignty, 267 substitution, 460 unilateral action, 428 unilateral force, 462 use of threats/force, 212, 242, 422, 423 violations, 244 UN General Assembly initiatives, 50 role, 282, 367, 369 UN Security Council see also Security Council Resolution (1368); Security Council Resolution(1373); Security Council Resolution (1441); Security Council Resolution (1540) ability to function, 244 adaptability basic character, 300, 301 disarmament regime, 302 indefinite capacity, 305 legitimate self-defence, 302 logic of exigencies, 301 logic of response, 301 member preferences, 303 support of members, 301 unexpected situations, 301

531

administrative resources, 301 architectural role, 300, 301, 305 armed force authorisation, 423, 426, 427, 451 direct/indirect use, 426 excessive use of force, 428 Member State action, 427 multinational security forces, 428 occupying forces, 428 self-defence, 427 blockage/renewal, 281 collective measures, 204 collective security, 212, 294, 298 see also Collective security competences, 44, 243, 283, 291, 294 composition, 243 conflict resolution, 102 controlling/organising action, 291 co-operation techniques, 301 criticisms arbitrariness, 284, 288, 289 composition. 283, 295 conception, 284 decision-making capacity, 287, 295 discretionary power, 284, 289 disposal/dispersal of resources, 296, 301 existence, 283 failure to safeguard peace and security, 282 lack of enforcement, 284, 287, 288, 295 membership, 284, 285 military weakness, 287, 288 structure, 284, 285 veto power/right, 284, 286, 287, 289 dispossession, 246 French attitudes, 441 function/fulfilment, 283 functional adjustments authorising Member State action, 291 customised regimes, 291 interventions, 291 recognising given situations, 291, 304 recording given situations, 291, 304 special missions, 291 general mission, 244 historical/political/institutional context, 281 humanitarian intervention, 435–8, 447, 448, 508 institutional dynamic basic nature, 290 decision-making process, 290, 291 relations with other entities, 290 relaxation of rules, 90 subsidiary bodies, 290 instrumental character, 301

(Zh) Sur index_(%) 234x156 Monograph 21/09/2010 11:49 Page 532

532

Index

UN Security Council (cont.): international peace and security, 488, 492 international security challenges, 294 interventions authorisation, 42, 294, 447, 457, 508 methods, 292 prime responsibility, 305 recognising situations, 304 recording situations, 304 restoration of peace/security, 304, 305 Iraq conflict, 42, 281, 283, 294, 297, 298, 300 see also Iraq conflict (1991); Iraq invasion/occupation (2003) jurisdiction, 262, 271, 272, 488 Kosovo conflict, 281, 455–7 see also Kosovo conflict legal authority, 282 legal control, 245 legal limitations, 245 mandate, 292 membership, 269, 284, 285 non-permanent members, 282 operational resources, 301 paralysis, 282, 284, 286, 289, 426, 464 peacekeeping operations, 44, 289, 290, 300, 302 permanent members, 281, 289, 295, 296 political influences, 244, 245 political/legal articulation, 244, 245 political legitimacy, 282 political/military articulation, 246 powers, 243, 294, 303 preventive/corrective actions, 244 primary responsibility, 291, 292, 425 privileged members (P5), 282–6 recourse to armed force, 295, 298, 302 reform, 258, 283, 285, 289, 294–6, 305, 306, 349, 426 regionalisation, 269 Resolutions, 244, 245, 291, 292, 293, 296, 299, 300 September 11 attacks, 292, 294 see also September 11 attacks role, 256, 258, 281, 282, 316, 426 source of legitimacy absence of legitimacy, 297, 299, 300 abstentions, 297 bases of legitimacy, 296–8 decision-making capacity, 295, 297 differing perceptions, 299 international legitimacy, 296, 297, 299 just wars, 298 membership issues, 296 non-decisions, 297 preceding Resolutions, 297 symbolic legitimacy, 296 UN Resolutions, 296

unrivalled legitimacy, 299, 300 specific functions, 291 thematic adaptation anti-terrorist measures, 292 arms control, 292 intervention methods, 292 legitimate self-defence, 292 peace settlements, 293 post-conflict reconstruction, 292 spheres of action, 292 unforeseen circumstances, 292 UN Charter violations, 244 US attitudes, 281, 292, 293, 295, 304, 441 veto power/right, 244, 245, 247, 281–4, 286, 287, 289, 290, 305, 425, 464 veto procedure, 44 UN security responses anti-terrorism measures, 272, 273, 276, 277 corrective responses civilian massacres, 276 coercive responses, 273 hard security, 273 humanitarian interventions, 275 International Criminal Tribunals, 276, 277 self-defence, 273, 274 UN Resolutions, 273 curative responses, 277, 278 disarmament, 271, 272 see also Disarmament economic dimension, 271 hard security, 271–3 international agreements, 270 nature of responses, 294 normative action, 271, 272 operational action, 272 overview, 265, 266 preventive responses, 270–3 soft security, 270, 271 States central role, 266 failed States, 266, 267 international obligations, 266 sovereignty, 266, 267 UN Charter obligations, 266 UN Resolutions, 272, 273 weapons inspection, 272 Unilateral acts see also Unilateralism acquiescence, 152, 153 affirmation of legal position, 152 consequences, 152 dialectical relationship/general rules, 154 dissenting unilateral acts general rule, 152 relevance, 153–4

(Zh) Sur index_(%) 234x156 Monograph 21/09/2010 11:49 Page 533

Index State action, 152 subsequent acts, 153 Unilateralism anti-terrorist measures, 459 legitimate preventive defence, 459 see also Preventive war doctrine State action, 143, 144 US Congressional support, 459 US national security, 458 US hegemony, 39, 40, 57, 81, 88, 105, 268, 458–60 see also US hegemony ‘War against terror’, 458, 459, 461, 505 United Kingdom decolonisation, 69, 72 devolution, 72 diplomatic relations, 68 duality/duplicity, 73, 74 EU Membership, 68, 69, 72 foreign policy, 68 French attitudes, 68 hierarchical society, 71 individual freedom, 68 innovation, 71 institutions, 68 international influence, 68–71, 73 international solidarity, 71 military power, 69 modernisation, 71–4 multiculturalism, 71, 73 political action, 71, 72 political influence, 69 political system, 70 public services, 70 religious freedom, 73 social systems, 68 socialism, 72 sphere of influence, 73, 74 United Nations see also UN Charter; UN General Assembly; UN Security Council balance of powers, 268 competition from other bodies, 268 criticisms, 258, 267, 268 Economic Security Council, 215 collective security, 237, 238, 240–8 see also Collective security disarmament, 272 see also Disarmament humanitarian actions, 212 instrumentalisation, 268 international peace and security, 241, 244 model of power, 79 multilateralism, 258 peacekeeping missions, 212, 218, 264, 265, 277, 278, 289, 290, 300, 302 privatisation of solutions, 268 recruitment

533

quota system, 268, 269 recruitment methods, 268 role, 267 specialised institutions, 282 structure, 282 subsidiary organisations, 270 universality, 257, 258, 267 US attitudes, 258, 268 United States of America see also US hegemony civilisation, 32 economic revolution, 31 enlightenment values, 31 foreign policy, 29, 36, 38, 40 independence, 30 influence, 28 international relations, 28–33 nuclear capability, 42, 51 political revolution, 30 September 11 attacks, 28, 29, 50, 53, 56, 58, 61, 64 see also September 11 attacks technological revolution, 31 unilateralism legitimate preventive defence, 459 US Congressional support, 459 US hegemony, 39, 40, 57, 81, 88, 105, 268, 458–60 US national security, 458 ‘War against terror’, 458, 459, 461, 505 universal supremacy communication/information, 32 human resources, 32 imagery, 32 influence, 32, 33 isolationism, 33, 34 language, 32 military intervention, 32 superiority, 33, 34 technological resources, 32 universality, 267 Universality humanitarian law, 494, 503, 504 International Criminal Court, 478–80 international security, 267 Rome Statute, 502 United Nations, 257, 258, 267 US supremacy, 30 US hegemony acceptance, 374 ambiguities economic issues, 50 hegemony of demand, 52 hegemony of supply, 52 inherent ambiguity, 50–2 isolationism, 51 national interest, 50

(Zh) Sur index_(%) 234x156 Monograph 21/09/2010 11:49 Page 534

534

Index

US hegemony (cont.): ambiguities (cont.): neo-realist approach, 50 opportunism, 50, 51 underlying causes, 49 ambivalence constraint/choice, 106 international perceptions, 107 justification/objectives, 106 analysis, 374 challenges alliances, 59, 60 anti-State attitudes, 62 challenges from partners, 56, 59–62 civil society, 66 culture of subjection, 62 developing nations, 58, 59 diffused contention, 56–8 distinctions, 55, 56 economic power, 57, 58 environmental concerns, 63 European interests, 60–2 global governance, 62 hostile challenges, 56, 58–9 humanitarian concerns, 63 international civil society, 56, 67 international insecurity, 58 international institutions, 62 international mistrust, 57 international relations, 56, 63 NGO influence, 62–4 normative action, 64, 65 pacifist thinking, 63 resistance, 374, 375, 383, 458 rogue States, 58, 59, 67, 80 Russian interests, 61, 62 structural challenges, 62 terrorism, 63, 65, 66 traditional methods, 56 universal human rights, 57 violence, 63, 65 war, 65–7 components ad hoc coalitions, 43–5, 57, 268, 292 ambiguities, 39, 49–55 bilateralism, 40 deterrence doctrine, 42, 43 diplomatic opportunism, 39–43 diplomatic pressure, 42 economic domination, 42, 46–9, 374 international interventions, 42 international trade, 42 liberty of action, 39 limitation of means, 39 military supremacy, 43, 44, 374 multilateralism, 41, 42, 105 political indecisiveness, 39 political pressure, 374

predatory nature, 383 regionalisation, 41, 44, 45 strategic balance, 46 universal code of conduct, 42 unlilateralism, 39, 40, 57, 81, 88, 105, 268, 458–60 conservative nature, 51, 54 covert operations, 104 decline, 56, 57 defensive nature, 51, 54 domination, 29, 52, 104, 374, 383 economic domination see Economic domination foreign policy, 29, 36, 38, 40 fragility lack of political legitimacy, 82, 83 structural resistance to international law, 82, 83 subjugating autonomous centres of power, 82, 83 future position, 67 hegemonic power, 81, 82 imperialism, distinguished, 104 see also Imperialism international law bilateral agreements, 88 coercion, 81 deregulation, 80, 81 discrimination, 80, 81 instrumentalisation, 80, 81 nationalist international law, 80 structural resistance, 82, 83 unilateralism, 81, 88, 105 internal lobbies, 53, 54 international relations, 28–30, 39, 56, 59, 62, 102–4, 374 isolationism, 33, 34, 51, 78, 107 legitimacy, 248 military supremacy arms race, 44 deterrence doctrine, 43 extra-atmospheric space, 43 imperative, 43 military capability, 43, 51 military interventions, 44 military power, 57 nuclear strategy, 51 response to threats, 43 training foreign soldiers, 44 ‘zero dead’ policy, 43 national interest, 53, 54, 57, 106, 107 nuclear capability, 42, 105 origins, 52–4 power through denial, 51 purposes, 54, 55 reality, 28, 30 regionalisation conflict management, 45

(Zh) Sur index_(%) 234x156 Monograph 21/09/2010 11:49 Page 535

Index hegemony, 44, 105 peacekeeping, 44 pre-existing alliances, 45 regional coalitions, 44, 45 regional threats, 45, 46 risk evaluation, 46 security issues, 44, 45 strategic balance, 46 September 11 attacks, 50, 53, 56, 58, 61, 64 see also September 11 attacks stability, 55, 56, 58, 106 State-centred, 104 UK support, 84 universality, 30 Use of force State power, 3 UN Charter, 212 Utopian dimension affirmation of rights, 134 anticipation formation of law, 136, 137 fundamental rules, 137 aspiration for change, 125, 135 collective security, 133 see also Collective security economic relations, 132 see also Economic relations functions in relation to legal system derivation, 138 transfer, 137, 138 functions within the legal system affirmation, 135, 136 anticipation, 135, 136, 137 negation, 135, 136 influences, 125 international harmony, 125 international law, 126, 131–3 international legal system, 127 international organisations, 125 international relations, 135 international society, 126 lex ferenda, 134, 135 lex lata, 135 method, 125, 126 partial achievement, 125 peacekeeping, 131, 132 security, 131, 132 subjects of international law international organisations, 134 States, 133, 134 Violence failure of power, 11 multiple forms, 10

535

State power, 3, 8, 10, 11 US hegemony, 63, 65 see also US hegemony War see also Nuclear war; Preventive war doctrine condemnation, 211 failure of war, 23, 24, 66 just wars, 211, 212, 298 US hegemony, 65–7 see also US hegemony War crimes, 469, 481 Weapons see also Nuclear weapons; Weapons of mass destruction (WMDs) prohibited weapons, 356 weapons classification, 356, 357 Weapons of mass destruction (WMDs) see also Nuclear weapons acquisition by non-State actors, 313 classification biological weapons, 250, 251, 253 chemical weapons, 250, 251, 253 nuclear weapons, 251 control, 251, 254, 255 definition, 250, 328, 356, 357 delivery systems , 326, 328, 357, 387, 404 deterrence, 387 dictatorial States, 253 elimination, 254 failed States, 115 French terminology, 250 hyper-terrorism, 250 international instruments, 251, 254 multi-faceted threat, 250 non-proliferation, 313–15, 323, 324, 326, 332, 350, 460 non-State actors definition, 327 proliferating activity, 326, 327, 350 public authority complicity, 327 State liability, 327 States as intermediaries, 326 prohibited weapons, 356 proliferation, 115, 252, 254, 255, 263, 272, 292, 303, 386 related materials, 328 trafficking, 328 weapons inspection, 308–10 WMD Free Zone, 414 World Trade Organisation (WTO) free trade, 42 influence, 102